Snitching

Criminal Informant Law, Policy, and Research

Reliability

Snitches bolster weak cases

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The most egregious cases of informant unreliability occur where an entire case turns on the testimony of a single compensated snitch. The dangers of wrongful conviction in this scenario are so obvious that numerous states have or are considering corroboration requirements. But informant testimony can produce wrongful convictions in another way, and that is by making weak cases look stronger than they are. For example, Florida Today ran a story last week (updated link) on the probable innocence of Gary Bennett. Bennett was convicted based on a now-discredited dog sniff expert and the testimony of a jailhouse snitch. Similarly, in the high profile case of Cameron Todd Willingham, the Texas man was convicted and executed for arson based on a combination of poor forensic science and the testimony of a jailhouse snitch who later recanted. See previous post.

Such cases are not accidents. Jailhouse snitches are infamous for fabricating information about homicide and other high-profile cases, and offering the information to law enforcement without any solicitations or promises on the part of the government. In other words, the very existence of the case generates the bad evidence because of the general expectation in the offender population that such information will eventually be rewarded. This snitch testimony, however, makes the original case look stronger than it really is. This problem cannot be solved by corroboration requirements, since the informant’s information is automatically “corroborated” by the pre-existing weak evidence. Yet another reason to restrict the use of jailhouse informant testimony.

Do jurors ignore informant rewards?

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One of the central justifications for the use of compensated criminal witnesses is the idea that juries can evaluate informant credibility in ways that lead to fair and reliable outcomes. Specifically, the Supreme Court held that rewarding criminals for testimony is constitutional, relying in part on the procedural protections of discovery, cross-examination, and jury instructions. The idea is that the government can constitutionally reward its witnesses as long as the defense knows about it and the jury is properly instructed.

Recent psychological research throws some doubt on this idea. Dr. Jeff Neuschatz and a number of other psychologists published the following paper: The Effects of Accomplice Witnesses and Jailhouse Informants on Jury Decision Making, Law & Human Behavior 32 (2008): 137-149. They concluded that jurors who were told that a witness was getting a deal (and therefore had an incentive to lie) were just as likely to convict as jurors who didn’t know that the witness was being compensated. Moreover, the bare fact that an informant said there was a confession made the jury more likely to convict. From the article:

First, both college and community samples demonstrated that conviction rates were unaffected by the explicit provision of information indicating that the witness received an incentive to testify. Second, and consistent with the research on confession evidence in the courtroom, the presence of a confession, albeit a secondary confession, had a significant influence on mock juror conviction rates. More specifically, in every witness typeand across both college and community samples, mock jurors convicted significantly more often when there was a secondary confession provided by a cooperating witness than when no such witness had testified….

Even though the witness in the incentive condition had an enormous motivation to fabricate evidence (having been provided a situational incentive to testify), jurors appeared to ignore this information and render verdicts that were not significantly different across the Incentive and No Incentive conditions. The participants may not have recognized or considered the impact that an incentive might have on behavior and/or the willingness to provide accurate and truthful information. Furthermore, participants did not have significantly different ratings of truthfulness or trustworthiness across the Incentive and No Incentive conditions.

This is an important finding. The system assumes that jurors who are told that an informant is getting a deal will be less likely to believe the informant and less likely to convict. This study suggests not only that this isn’t so, but that just having a criminal informant testify to a confession significantly enhances the likelihood of a conviction.

Even jurors were worried about informant reliability

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On Friday, a Denver jury convicted Willie Clark in the killing of Denver Bronco Darrent Williams during a drive-by shooting. Much of the case, although not all, was based on the testimony of heavily rewarded criminal informants. Stories here and here. One witness in particular, Daniel “Ponytail” Harris, admitted to being in the car from which the bullets came, and testified that he saw Clark, and only Clark, shoot out the window at the limousine in which Williams was riding. Harris was facing a life sentence for an unrelated federal drug charge, but in exchange for his testimony, he will see that sentence cut down to five years. He will also avoid being prosecuted for the shooting himself. Another witness, gang member Vernone Edwards, will get a decade shaved off his crack-cocaine trafficking sentence. This sort of heavily compensated, self-serving testimony is one of the prime reasons that informant testimony has become such a problematic source of error. Three alternate and released jurors who spoke to reporters after the case was over said they did not believe Harris. One of the lead prosecutors in Harris’s drug case candidly explained that prosecutors can only do their best to determine whether such witnesses are telling the truth.

It used to be that informant unreliability issues were litigated, if at all, on habeas, or by volunteer attorneys at innocence projects long after the case was over. Those days are coming to an end. With heightened public and media awareness of the problem, I predict that we will see more cases in which the problem of informant reliability is addressed early on in the process, at trial or on appeal, and not, as so often has happened in the past, as an afterthought or not at all.

Another wrongful conviction in the making?

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The Pacific Northwest Inlander just published this story, entitled Reasonable Doubt, about the recent robbery convictions of Tyler Gassman, Paul Statler, and Robert Larson. The sole evidence against the young defendants was the testimony of Matt Dunham, a confessed drug dealer and robber himself, who named Gassman and the two others as accomplices in a series of unsolved robberies. In exchange for his testimony, Dunham received a light sentence for his own robbery charge–18 months in a juvenile facility; by contrast, Gassman received 25 years. Two weeks after the verdict, Dunham’s accomplice, Anthony Kongchunji, came forward and confessed that he and Dunham had conspired to pin the unsolved crimes on Gassman and the others in order to get deals for themselves, their friends, and relatives. The trial court denied the defendants’ motion for a new trial, and the case is currently on appeal.

Afghan airstrike triggered by single informant

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The Washington Post reported yesterday that the NATO airstrike that killed numerous Afghan civilians was based on intelligence received from a single informant, in violation of command policy. According to the Post:

The decision to bomb the tankers based largely on a single human intelligence source appears to violate the spirit of a tactical directive aimed at reducing civilian casualties that was recently issued by U.S. Gen. Stanley A. McChrystal, the new commander of the NATO mission in Afghanistan. The directive states that NATO forces cannot bomb residential buildings based on a sole source of information.

The civilian equivalent to the McChrystal directive is the corroboration requirement, which comes in a variety of forms. A dozen or so states have an accomplice corroboration requirement stating that no defendant can be convicted based solely on the uncorroborated testimony of an accomplice. Texas has a relatively new and important informant corroboration requirement which prohibits the conviction of any drug defendant based solely on the testimony of a single informant. Texas promulgated its rule after the 1999 Tulia debacle, in which a single undercover narcotics agent falsely charged a large percentage of the town’s black population, many of whom were convicted without any corroborating witnesses or evidence. The California legislature has twice passed legislation that would require corroboration for jailhouse informants–Governor Schwarzenegger has vetoed it both times. And while criminal snitches have unique problems that distinguish them from military, national security, and other kinds of informants, all classes of informants share deep unreliability risks. The NATO airstrike provides yet more evidence of the value of having and honoring corroboration requirements.