The Connecticut Supreme Court has long required a special jury instruction for jailhouse informants. As the Court has written, “a trial court must issue a special credibility instruction when a jailhouse informant testifies because such informants have a powerful incentive, fueled by self-interest, to implicate falsely the accused, and, consequently, their testimony is inevitably suspect.’’ Last month in State v. Jones, the Court extended that requirement to an informant who alleged that the defendant confessed to him years before, when neither of them were in jail. The informant happened to be incarcerated when he approached police with the information. The state argued that the special instruction should only be applicable when an informant alleges a jailhouse confession, but the Court concluded that the risks of fabrication “do not depend on the location where the alleged false confession occurs,” since the informant had the same motive to lie, and because “false confessions are easy to fabricate, but difficult to subject to meaningful cross-examination.”
Reliability
Jailhouse snitch exoneration in Detroit
Ramon Ward was wrongfully convicted of murder in 1994 based on the testimony of two jailhouse informants and sentenced to life in prison. Twenty-five years later, the Conviction Integrity Unit of the Wayne County Prosecutor’s Office in Detroit moved to vacate his conviction and he was released in February of this year. Story from The New Republic here: He Was Wrongly Imprisoned for 25 Years. It Wasn’t DNA Evidence That Got Him Out.
Of particular note, Ward’s wrongful conviction was secured in part because Detroit police went around the prosecutor’s office to obtain benefits for their informants directly from the judge. As one prosecutor actually observed during Ward’s trial, “promises of leniency are made to these snitches without approval—or prior knowledge—which exceeds police authority and violates our policies.” That same prosecutor worried about wrongful conviction: “I have been told,” he wrote, “that snitches do lie about overhearing confessions and fabricate admissions in order to obtain police favors or obtain the deals they promised.”
Ward was not alone: his wrongful conviction was part of a pattern of Detroit police practices in the 1990’s.
Connecticut Supreme Court issues decision on informant experts
The Connecticut Supreme Court has decided that informant experts like myself are admissible when they can provide specialized information to jurors about informant unreliability, namely, information that jurors would not otherwise know based on common sense or from the popular culture or general media. The Supreme Court upheld the exclusion of my testimony in this particular case, but noted that such testimony is not per se inadmissible, and it imagined other scenarios in which expert testimony might be admitted. The 2019 case, State v. Leniart, overturned this 2016 decision, in which the Connecticut Court of Appeals held that the trial judge made a mistake in preventing me from testifying before the jury.
I explain what the Leniart decision means in more detail in this piece for The Appeal: Why Juries Need Expert Help Assessing Jailhouse Informants. In particular, I explain why jurors are unlikely to understand the full scope of informant practices, fabrications, and motivations to lie, and therefore would be helped by hearing expert testimony:
“Informants are highly motivated to give persuasive, believable testimony in exchange for their own freedom. They can also receive money, drugs, sex, food, and phone privileges when they cooperate with jail officials. Some scour the newspapers, pay other inmates for information, or get family members to pull court records so that they can come up with incriminating testimony against their cellmates. Some jurors may already know about these sorts of practices; many will not.”
Eye-opening series on jailhouse informants in ProPublica/NYT
Pamela Colloff has written this extraordinary investigative series into the government’s use of jailhouse informants. She zeroes in on Paul Skalnik, a prolific and stunningly unreliable informant who escaped punishment for many of his own crimes, including child molestation. The first piece is entitled How This Con Man’s Wild Testimony Sent Dozens to Jail, and 4 to Death Row, and was jointly published by ProPublica and the New York Times Magazine. Among the many people Skalnik sent to jail is James Dailey whom many believe to be innocent: Dailey is currently on death row. From the article:
“In jail, it is widely understood that helping prosecutors and the police can earn extraordinary benefits, from reduced sentences to dismissed charges. By the time Dailey’s trial began the following summer in Clearwater, in June 1987, no fewer than three inmates had come forward claiming to have heard Dailey confess to the killing. The first two worked in the jail’s law library, where they professed to have heard Dailey say about the murder, “I’m the one that did it.” They also told the jury of ferrying several handwritten notes between Dailey and Pearcy; in the letters shown to the jury, Dailey appeared eager to appease his co-defendant, whom prosecutors planned to put on the stand. But the two jailhouse informants were eclipsed by a third inmate, who had contacted Halliday to say that he had some information. He told a much more damning story — one that placed Dailey at the scene of the crime and put the knife in his hand. It was exactly what prosecutors needed. That witness was Paul Skalnik, a familiar figure around the Pinellas County Courthouse. He had appeared before the court numerous times as a jailhouse informant and was skilled at providing the sort of incendiary details that brought a defendant’s guilt into sudden, terrible focus.”
Colloff writes more about the Dailey case here: A Liar Put Him on Death Row. His Co-Defendant Could Help Set Him Free. Why Won’t He?
Bulk arrests and convictions based on unreliable informants
This story from Tennessee reminded me of the high profile snitch debacle in Hearne, Texas in which a confidential informant working for the local drug task force set up dozens of innocent African Americans. Similarly, in Tracy City, Tennessee, the city and the police department are being sued by an innocent couple who–along with 29 other people–were set up by an unsupervised drug informant. Here is an excerpt from the story:
“Tina Prater walked into the police station with a reputation as a drug addict and a con artist. She walked out with a tape recorder, some cash and a mission: help the police chief arrest anyone whose name made it onto their list. Prater, 47, has admitted in a sworn affidavit that she framed people while working as a confidential informant for the Tracy City Police Department in 2017. She recruited imposters to act as other people, recorded audio of purported drug deals and turned the tapes over to Chief Charlie Wilder, who oversees just four officers in one of Tennessee’s poorest and most drug-addicted counties.”
And here is another story just like these two, in which a Florida drug informant admitted that she set up innocent people by fabricating drug deals: she did it in exchange for money, a home, and custody of her children.