Snitching

Criminal Informant Law, Policy, and Research

Reliability

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.

Montana introduces informant reform legislation

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Montana State Senator Nels Swandal (R) has introduced legislation–SB0249–that would improve the reliability and accountability of informant use.  Among other things, the bill would require the recording of informant statements, improved disclosure of informant benefits and prior criminal history, reliability hearings, and post-conviction remedies for wrongful conviction.  News coverage here.

DOJ to investigate Orange County

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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:

DOJ audit of DEA confidential source program

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The U.S. Department of Justice Office of the Inspector General has just released this audit of the DEA’s Confidential Source Program.  In a rare glimpse into the scope and scale of informant deployment, the audit states: “Between October 1, 2010, and September 30, 2015, the DEA had over 18,000 active confidential sources assigned to its domestic offices, with over 9,000 of those sources receiving approximately $237 million in payments.”

The audit was critical of the DEA. Here are a few excerpts:

  • “[W]hile DEA policy prohibits paying deactivated sources who were deactivated because of an arrest warrant or for committing a serious offense, we found two concerning instances of payments to previously-deactivated sources. In one case, the DEA reactivated a confidential source who previously provided false testimony in trials and depositions. During the approximate 5-year period of reactivation, this source was used by 13 DEA field offices and paid $469,158. More than $61,000 of the $469,158 was paid after this source was once again deactivated for making false statements to a prosecutor. . . .  [W]e estimated the DEA may have paid about $9.4 million to more than 800 deactivated sources between fiscal years (FY) 2011 and 2015.”

  • “[W]e were extremely concerned to discover the DEA condoned its confidential sources’ use of “sub-sources,” who are individuals a source recruits and pays to perform activities or provide information related to the source’s work for the DEA. During our review of DEA files, we found evidence of sources who were paid based, in part, on the need to pay “sub-sources,” but the information in the files was insufficient to allow us to determine the full extent of such payments.”
  • “[W]hen we asked the DEA Intelligence Division to provide us with an itemized list and overall total of payments to intelligence-related confidential sources, it was unable to do so. We reviewed DEA records and estimated that, during the 5-year period of our review, the Intelligence Division paid more than $30 million to sources who provided narcotics-related intelligence and contributed to law enforcement operations, $25 million of which went to just 9 sources. Additionally, we identified one source who was paid over $30 million during a 30-year period, some of it in cash payments of more than $400,000. We concluded the Intelligence Division’s management and oversight of its sources was not commensurate with the large amount of payments it made to them.”