The U.S. Department of Justice has announced an investigation–in conjunction with the U.S. Attorney’s Office of the Central District of California–into unconstitutional informant practices in Orange County. This is a welcome and important development. Below are links to stories, and to the original letter from former California Attorney General John Van de Kamp and U.C. Irvine Dean Erwin Chemerinsky, requesting that DOJ intervene:
The Connecticut Appellate Court has held that expert testimony on the general unreliability of jailhouse informants is admissible, and that a trial court abused its discretion when it excluded a defense expert (me) in a trial in which the conviction depended on several jailhouse informants. The opinion is here: State v. Leniart. The discussion of the expert issue is in Part IV, beginning on page 42.
The opinion contains several key findings:
1. The Court “acknowledged the growing recognition by the legal community that jailhouse informant testimony is inherently unreliable and is a major contributor to wrongful convictions throughout this country.” (p. 43, quoting State v. Arroyo)
2. “Although credibility determinations ultimately must be left to the jury, expert testimony nevertheless is admissible if it can provide a jury with generalized information or behavioral observations that are outside the knowledge of an average juror and that would assist it in assessing a particular witness’ credibility. As long as the expert does not directly opine about a particular witness’ credibility or  testify in such a way as to vouch indirectly for or bolster the credibility of a witness, the expert’s testimony would not invade the province of the jury to decide credibility and may be admitted.” (p.49)
3. An understanding of jailhouse informant culture, including the expectation of benefits and the lengths to which informants may go to procure and fabricate evidence, is not within the ken and understanding of the average juror (p. 50).
4. Expert informant testimony is similar to expert testimony regarding the unreliability of eyewitness testimony which is now widely viewed as admissible (p.51-52).
5. Generalized jury instructions may be insufficient to educate jurors regarding the dangers of informant unreliability, since in eyewitness cases “generalized jury instructions were not an adequate substitute for expert testimony” (p. 52).
The Marshall Project is reporting that two prosecutors directly implicated in Orange County’s jailhouse snitch scandal are running for judicial office. From the story, ‘The Scandal-Singed DAs Who Wants to be Judges‘:
For the past year, the district attorney’s office in Orange County, Calif., has been battling the fallout from revelations of a decades-old scheme of planting secret informants near defendants’ jail cells…Now two longtime prosecutors from that same office — Michael Murray and Larry Yellin — are running for Superior Court judgeships, aiming to take the bench alongside judges who have called them out for misconduct. Neither prosecutor has been formally sanctioned in the scandal. But both are supervisory-level district attorneys in an office that a judge recently ruled “habitually ignored the law over an extended period of time.” Both, by their own admission, have withheld evidence. And both are considered shoo-ins by the local press.
“When a Virginia man faces a possible death sentence in a murder trial later this year, his fate may rest on the testimony of four jailhouse informants, two of whom were initially found mentally incompetent to stand trial in their own cases.
The case of Joaquin S. Rams could soon become part of a growing national backlash over the government’s use of testimony from “snitches” — inmates who offer information against other inmates in exchange for lighter sentences or other benefits — to obtain convictions, sparked by a significant number of wrongful convictions attributed to false informant testimony.”
The jailhouse snitch scandal in Orange County continues to escalate. In November, Dean Erwin Chemerinsky, former California Attorney General John Van de Kamp, and numerous other legal experts (including me), called for a federal investigation. Here is the letter to U.S. Attorney General Lynch. A month earlier, the New York Times Editorial Board identified the “blatant and systemic misconduct in the Orange County District Attorney’s Office” and also called for a federal investigation. Meanwhile, the OC Register published this special report entitled “How jailhouse informants and the ‘snitch tank’ put Orange County justice system in turmoil.”