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.
Innocence
Experiments on the impact of inducements
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
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
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.”
California informant bill passes out of committee
A bill that would improve recordkeeping and disclosure regarding jailhouse informants just passed out of the California Legislature’s Public Safety Committee. The bill would also cap certain informants benefits. Bill here and ACLU press release here.
I testified in support of the bill along with Bruce Lisker, who was wrongfully convicted of murder at age 17 based on jailhouse informant testimony, and spent 26 years in prison before he was exonerated. Here is Mr. Lisker’s testimony from today’s hearing:
“Honorable Assembly Persons, my name is Bruce Lisker. I am here to urge a YES vote on AB359. On March 10, 1983 my teenage world became a nightmare. I discovered my mother beaten, stabbed and left for dead on the floor of our Sherman Oaks home. It wasn’t long before a corrupt LAPD detective was, unbelievably, arresting ME for the attack. I was cast into the notorious “Snitch Tank” at L.A. County Jail, where I met a vile creature known as Robert Hughes, a morally bankrupt jailhouse informant with an extensive rap sheet and one overriding mission – to get out of jail.
After conning me into innocent conversation, Hughes told police I’d confessed to him. I was the fourth target of his lies inside of 18 months. Police fed him cigarettes and food, flew him in private LAPD aircraft – and my prosecutor got him sprung from prison months early.
Hughes’ lies, and the criminal justice system that encourages them, cost me more than twenty-six years of freedom and youth I can never get back. Had AB359 been the law of the land, my lawyer would have known that Hughes had a lengthy history of severe mental health issues, including documented psychotic breaks.
He was given inducements to investigate and testify against me, had unrecorded interviews with police about the case, and undue influence rewarded his lies with the thing he coveted most, his freedom. All this was hidden or misrepresented by police and prosecutors.
Evidence is clear – jailhouse informant testimony is a leading causes of wrongful conviction in America. As demonstrated by the recent outrage in Orange County, and investigations in at least five other California counties, this problem persists. Please vote YES on AB359. Society deserves no less.”