Snitching

Criminal Informant Law, Policy, and Research

Reliability

Mass. Supreme Court orders comprehensive jury instructions for all jailhouse informants

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The Supreme Judicial Court (SJC) issued an opinion today requiring that juries be given comprehensive, detailed, cautionary instructions whenever the government calls an incarcerated informant as a witness, regardless of whether the informant is testifying pursuant to a cooperation deal. The Massachusetts high court also affirmed the general admissibility of defense expert testimony at trial “discussing the research regarding the unreliability of incarcerated informant testimony.” The SJC is following in the footsteps of Connecticut which has long required special cautionary jury instructions regarding informant testimony, and whose Supreme Court decided in State v. Leniart (2020) that defense expert testimony regarding informants is admissible. Here is a link to the SJC decision Commonwealth v. Lacrosse. Some excerpts from the SJC opinion:

We begin by acknowledging that the defendant raises legitimate concerns about the reliability of the testimony of incarcerated informants. . . . [W]e are persuaded that a more comprehensive and specific instruction directed at all incarcerated informant testimony, regardless of whether the incarcerated informant is testifying pursuant to a cooperation agreement, would be beneficial in future cases. . . .

Indeed, we have [] modified the Connecticut instruction to direct juries to consider how incarcerated informants may have accessed the information apart from a confession by the defendant, such as through access to the defendant’s discovery materials or media accounts of the crime.

Defense counsel may also, of course, present expert witness testimony discussing the research regarding the unreliability of incarcerated informant testimony so long as the requirements of Daubert-Lanigan are satisfied for such testimony. See State v. Leniart, 333 Conn. 88, 144 (2019) (expert testimony on “the general characteristics of the marketplace for criminal informant testimony and the academic research indicating that unreliable informant testimony contributes to many wrongful convictions” admissible so long as it satisfies other requirements for expert testimony).

For a more detailed explanation of why juries need expert help assessing jailhouse informants, see this explainer in The Appeal.

U.S. Supreme Court decides case on expert admissibility

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The Supreme Court decided a case on Thursday that is not about informants but that could have implications down the road for informant expert testimony. In Diaz v. United States (June 20, 2024), the Court held that a federal agent could testify as an expert that “most drug couriers” know they are transporting drugs. The defendant, Delilah Guadalupe Diaz, claimed that she did not know that drugs were in the car that she was driving. The Court reasoned that the agent was not testifying explicitly about what Diaz knew or did not know — that would have been prohibited by the Federal Rules of Evidence, Rule 704(b)— but only what “most people” in that group know. The majority rejected the dissent’s argument that the expert “functionally” stated an opinion about Diaz’s state of mind, because “[t]hat argument mistakenly con­flates an opinion about most couriers with one about all cou­riers.”  Rather, the Court held that “an expert’s conclusion that most people in a group have a particular mental state” is not an opinion about a particular individual in that group.

Diaz potentially enhances the admissibility of defense expertise regarding informants, specifically about whether informants know that they will receive benefits in exchange for the information they provide. As I and many other scholars have pointed out, most informants know that they will be rewarded for incriminating other people, even if the government has not expressly or formally promised them anything up front.  Nevertheless, the government often maintains that informants come forward for no reward, and informants will often tell the jury that they do not expect any reward.  In a similar vein, prosecutors often reassure juries that informants are reliable because lying informants will fear prosecution for perjury, but most informants (as well as lawyers and judges) know that such prosecutions are extremely rare. Expert testimony on what “most informants know” could thus be helpful to juries in deciding whether informants should be believed.

Courts are typically more willing to allow government experts than defense experts in criminal cases.  Indeed, the National Academies of Sciences issued a report in 2009 worrying that “trial judges rarely exclude or restrict expert testimony offered by prosecutors.” But Diaz cuts both ways. In her concurrence, Justice Ketanji Brown Jackson emphasizes that the decision is “party agnostic” and that “[b]oth the Government and the defense are permitted [] to elicit expert testimony ‘on the likelihood’ that a defendant had a particular mental state.”

Here is a link to an explainer about informant expert testimony that I wrote for The Appeal.  And here is a link to my colleague Professor Noah Feldman’s op-ed arguing more generally that Diaz was wrongly decided, and that it impermissibly waters down the prosecution’s obligation to prove its case beyond a reasonable doubt “because [the decision] invites the jury to conflate abstract statistical probabilities with the specific circumstances of the individual case.”

Another jailhouse snitch ring in Texas

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This deep and detailed series of articles from The Intercept uncovers a prosecutor’s heavy reliance on a snitch ring in the federal prison in Beaumont, Texas, and the discredited convictions that it produced. In the capital murder case against Ronald Prible, for example, a federal judge found that the prosecutor, Kelly Siegler, suppressed exculpatory evidence about the jailhouse informant whose testimony led to Prible’s conviction. Siegler is the television star of the true crime show “Cold Justice.” All three Intercept articles here: The Prosecutor and the Snitch Ring.

The Beaumont prison snitch ring has been in the news before. Ten years ago, Ann Colomb and her four sons were wrongfully convicted of federal drug charges based on dozens of lying Beaumont informants (here’s the original story from Radley Balko in Reason Magazine). Federal Judge Tucker Melancon who presided over the Colomb case complained specifically about Federal Rule 35 which permits federal prisoners to get sentence reductions in exchange for information. (This is the same rule that Siegler used in the Prible case to incentivize her informant, Michael Beckcom, to testify.) As Judge Melancon put it, “Everyone in the federal prisons knows what’s going on . . . . [T]hey realize they can tell the government things that happened years ago—true or not—and get time off their sentences.” And he warned that “[w]e potentially have a huge problem with this network in the federal prison system.”

Judges signing boilerplate no-knock warrants based on unreliable informants

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This investigation from independent journalist Radley Balko reveals the informant-driven machinery that produces so many unfounded no-knock warrants and their resulting violence: The curious career trajectory of a Little Rock judge. In this case, Balko explains how Little Rock police used the same unreliable informant over and over, lied in sworn affidavits, while judges issued warrants based on boilerplate language in violation of the Fourth Amendment.

Recall that the death of 92-year-old Kathryn Johnston in Atlanta was also due to a no-knock warrant, based on a bad informant tip, that police lied in order to obtain.

ABC News: “A Necessary Evil: The Cost of Confidential Informants”

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This extensive investigation by KSAT ABC Channel 12 delves into the use of unreliable drug informants, planted drugs, lack of supervision, and a host of other debacles that led to the wrongful conviction of multiple people in San Antonio, Bexar County, Texas. You can watch the hour-long special here; for additional videos, interviews and resources, check out their Confidential Informant page.

This kind of large scale drug scandal happens more frequently than you might think. See these previous posts for additional examples in Florida, Tennessee, and Texas.