Snitching

Criminal Informant Law, Policy, and Research

Innocence

Nebraska considered jailhouse informant reform

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Earlier this year, Nebraska introduced legislation that would have enhanced protections against unreliable jailhouse informants, including reliability hearings, enhanced disclosure requirements, and mechanisms to keep track of the government’s use of such informants.  The text of the bill (which is currently on hold) is here; story in the Lincoln Journal Star is here. 

Experiments on the impact of inducements

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Scholars at the University of Arizona Law School have published a paper entitled “Incentives, Lies and Disclosure,” 20 U. Pa. J. Con L. 33 (2018).  They conduct a number of behavioral experiments and conclude that incentivized witnesses like jailhouse informants are more likely to lie, and that even when potential jurors are told about the incentives, they still believe the witness.  Here is the abstract:  

Prosecutors can force witnesses to testify and use perjury prosecutions to hold them to the provable truth. More controversially, prosecutors also offer witnesses inducements for favorable testimony, including leniency, immunity, and even cash. This ubiquitous behavior would be illegal as witness bribery, except for a longstanding tradition of sovereigns using this power, which legal doctrine now reflects. A causal analysis shows that even if prosecutors use this power only in good faith, these inducements undermine the epistemic value of witness testimony. 

Due process requires, and legal doctrine assumes, that when such inducements are disclosed to the jury, they will discount the witness testimony accordingly. However, juries’ success in doing so is an empirical question. We conducted three randomized experiments with 1,000 human subjects in roles of witnesses and jurors deciding vignettes based on real cases. We find that incentives have large effects on witnesses, allowing prosecutors to routinely procure favorable testimony regardless of its truth. Yet, disclosure has no detectable effects on either witnesses or jurors. 

We discuss two potential reforms. First, courts could borrow from the practice with expert witnesses and use the current rules of evidence to conduct Daubert-like pretrial screening of incentivized witnesses for reliability. We frame the appropriate counterfactual question about whether the incentives would cause a witness to give the same testimony even if it were false. Second, we present the novel suggestion that prosecutors could decide whether to offer benefits to a witness based on whether she will testify to material information, but without knowing whether the information is favorable to the Government. These mechanisms may preserve the value of incentives to produce information, while minimizing false testimony.

Recordings of FBI informant recruiting tactics

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The Intercept has published a story of a man who documented and recorded nearly two years of efforts by the FBI to pressure him into becoming an informant. Story and recordings here: Recordings Capture Brutal FBI Tactics to Recruit a Potential Informant.  The story is by Trevor Aaronson, author of “The Terror Factory: Inside the FBI’s Manufactured War on Terrorism.”

States take a fresh look at snitching

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Here’s an op-ed I wrote for The Crime Report chronicling the latest wave of state legislative reform.  Some highlights:

–       Texaspassed comprehensive reform requiring prosecutors to track and disclose their informants’ criminal history, past testimony, and benefits.  The New York Times called it “the most comprehensive effort yet to rein in the dangers of transactional snitching.” 
–       Andrew’s Law in North Dakota prohibits campus police from using students as informants.  State police may only use informants with a written agreement.  Of particular note, Andrew’s Law bans the use of child informants under the age of 16, one of very few states to do so.
–       Illinois came very close to re-instituting reliability hearings.  The state previously required them in capital cases: now that Illinois no longer has the death penalty this bill will require pretrial hearings for all jailhouse informants.
–       Montana’s Senate Bill 249 introduced comprehensive legislation that would require, among other things, electronic recording of informant statements, greater prosecutorial disclosure, pretrial reliability hearings, and cautionary jury instructions.

–       Washington recently considered two bills. One from 2016 would have required pretrial reliability hearings in all informant cases.  The other would have required enhanced prosecutorial disclosure.  Barry Scheck, founder and director of the Innocence Project, wrote that the Washington legislation was a “key advance” and that it represented an opportunity to “ensure that the strongest protections are in place for the innocent.”