Snitching

Criminal Informant Law, Policy, and Research

Reliability

Illinois legislature passes new informant reform

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By Michelle Feldman

In April, the Illinois legislature passed new legislation that would require pre-trial reliability hearings and specific disclosure requirements before jailhouse informant testimony is admissible in the most serious criminal cases. Now Senate Bill 1830 is awaiting action by the governor.

Illinois has been on the forefront of safeguarding against wrongful convictions stemming from unreliable jailhouse informant testimony. Based on recommendations from former Illinois Governor George Ryan’s Commission on Capital Punishment, the state passed a law in 2003 requiring pre-trial reliability hearings and specific disclosure requirements before jailhouse informant testimony was admissible in capital cases, which became moot when the death penalty was abolished in Illinois in 2011. SB 1830 would apply the same safeguards in murder, sexual assault and arson cases. Read more here from NPR.

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.