attachment_id=996 - UDC Law Review

WHEN SNITCH TESTIMONY GOES WRONG: HOW INFORMANT
TESTIMONY CONTRIBUTES TO WRONGFUL CONVICTIONS
Sakinda L. Skinner *
Don’t go to the pen, send a friend. If you can’t do the time, just drop a dime. Trouble You better
call 1-800 HETOLDME. 1
The experience shows pretty much what you would expect—that when the criminal justice
system offers witnesses incentives to lie, they will. 2
INTRODUCTION
The United States criminal justice system is a body of practices and institutions directed at
maintaining social control, deterring crime, and punishing individuals who violate laws and pose
a threat to citizens. However, even the best criminal justice systems sometimes convict the
wrong people. Several factors contribute to these wrongful convictions. 3 Criminal informants, or
“snitches,” 4 are among the most significant of those factors that contribute to convictions of
innocent people. 5 According to Northwestern University Law School’s Center on Wrongful
Convictions, 45.9% of 111 U.S. wrongful capital conviction cases (since the 1970s) were
primarily caused by false informant testimony—followed by eyewitness misidentification
(25.2%), false confessions (14.4%), and false or misleading scientific evidence (9.9%). 6
*
In 2006, Sakinda graduated from Kansas State University receiving her Bachelor’s of Science in
Criminology with a minor in Women’s Studies. In May 2012, Sakinda graduated cum laude from the University of
the District of Columbia, David A. Clarke School of Law (UDC-DCSL). Sakinda was a recipient of the Dean’s Cup
award, honoring her for her outstanding service throughout law school. At UDC-DCSL, Sakinda co-founded the
Innocence Project Student Association (IPSA). IPSA was created to increase awareness and educate students and the
community on factors leading to wrongful convictions. While attending law school, Sakinda obtained significant
hands-on legal experience. At the Mid-Atlantic Innocence Project in Washington, D.C., Sakinda drafted Motions
and Memoranda of Law for Post-Conviction DNA Testing to assist in proving innocence for wrongly convicted and
incarcerated prisoners. Additionally, Sakinda worked as a law clerk at the Public Defender’s Office of the State of
Maryland where she established case theories to offer the best defense for indigent clients. Currently, Sakinda serves
as a Judicial Law Clerk at the Prince George’s County Circuit Court. In addition to her legal contributions, she is
both passionate and dedicated to performing public service and is devoted to indigent representation and improving
impoverished communities.
1 BARRY SCHECK, PETER NEUFELD & JIM DWYER, ACTUAL INNOCENCE 166 (2001). America’s most
infamous snitch, Leslie Vernon White, also a career criminal, faked confessions in dozens of cases, coaxing details
about cases out of police and prosecutors by telephone from jail. In an interview on 60 Minutes, White joked that the
snitch system had spawned slogans, such as “don’t go to the pen, send a friend” and “if you can’t do the time, just
drop a dime.”
2 ROB WARDEN, CTR. ON WRONGFUL CONVICTIONS, THE SNITCH SYSTEM: HOW SNITCH TESTIMONY SENT
RANDY STEIDL AND OTHER INNOCENT AMERICANS TO DEATH ROW (2004), available at
http://www.innocenceproject.org/docs/SnitchSystemBooklet.pdf.
3 The Causes of Wrongful Convictions, THE INNOCENCE PROJECT,
http://www.innocenceproject.org/understand/ (last visited Dec. 21, 2010).
4 “Snitches,” also known as “in-custody informants,” are criminals or criminal defendants who provide
information in exchange for lenience in their sentencing or other benefits.
5 Alexandra Natapoff, Beyond Unreliable: How Snitches Contribute to Wrongful Convictions, 37 GOLDEN
GATE U. L. REV. 107 (2006).
6 WARDEN, supra note 2, at 3.
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There are three main reasons why snitch testimony is a leading cause of wrongful
convictions. First, jailhouse snitches frequently receive cash or lenience in sentencing for their
own crimes, offering them strong incentives to fabricate testimony. Regardless of these
obviously problematic incentives, however, prosecutors solicit testimony from compensated
informants, with insufficient procedural safeguards. 7 In other words, prosecutors solicit
information from snitches who are highly motivated to offer inculpatory testimony, because if
they do not, they will not receive favorable treatment or cash payments. 8
Second, the use of snitch testimony can lead to wrongful convictions because juries find
informant testimony particularly credible. The reason for this is that criminal informants are
highly incentivized to convince the government of their lies, and therefore, they must convince
juries too. Otherwise, the compensated informant will not receive what they were promised in
exchange for their testimony.
Additionally, prosecutors rely too heavily on criminal informants. 9 This is problematic
because prosecutors usually do not have firsthand knowledge about the information given from
criminal informants, which makes it difficult for them to discern when informants are lying. 10 In
short, prosecutorial reliance on snitches distorts the truth-seeking process. The typical pattern of
the transaction—snitch obtains a benefit and the prosecutors receive inculpatory information–
creates no incentive for the informant or the prosecution to critically examine the information
obtained, which jurors are inclined to believe. 11
Finally, wrongful convictions attributable to this practice continue because insufficient
procedural safeguards exist to regulate the use of compensated informant testimony. Police and
prosecutors are not obligated to maintain a central file system that tracks an informant’s record.
Courts do not mandate pre-trial hearings during which the truthfulness of criminal informants
can be examined prior to trial.
Additional procedural safeguards and transparency are necessary to avoid further wrongful
convictions. Without such reforms, wrongful convictions based on snitch testimony will continue
and innocent people will suffer great injustices. In this article, I outline two principles that can
aid in the process of improving our criminal justice system: Accountability and balance. We
must recognize and insist that our criminal justice system become accountable for the substantial
dangers of unregulated and unchecked informant testimony. We also must balance the
prosecutorial process with the preservation of human dignity. Our criminal justice system must
impose practical safeguards for the use of snitch testimony and prohibit criminal justice officials
from abusing informant testimony.
Section I of this article is a brief examination of national data on snitch testimony as a
leading factor in wrongful convictions. Section II introduces the historical background of snitch
testimony. Section III explains the significance of Giglio v. United States, 12 which explores the
constitutional implications of unregulated snitch testimony. Section IV analyzes the misuse of
criminal informants in the criminal justice system. Finally, section V compares the Maryland
Criminal Procedure Statute on Informant Testimony to The Justice Projects’ Model Statute on
Informant Testimony; and, offers recommendations to better ensure that criminal informant
7 Natapoff, supra note 5, at 107.
8 Id. at 108.
9 Id. at 110-11.
10 Ellen Yaroshefsky, Cooperation with Federal Prosecutors: Experiences of Truth Telling and
Embellishment, 68 FORDHAM L. REV. 917, 943-44 (1999).
11 Natapoff, supra note 5, at 108.
12 See infra notes 26-32 and accompanying text.
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testimony does not compromise the fair administration of justice. Specifically, these
recommendations call for systemic safeguards to protect innocent people from wrongful
convictions, to hold corrupt officials and agencies accountable for misusing criminal informants,
and to ensure that human dignity does not become a casualty of the adversarial system.
I. NATIONAL DATA ON SNITCH TESTIMONY
In more than 15% of wrongful convictions overturned by DNA evidence, an informant or
jailhouse snitch testified against the defendant. 13 Often, statements made by people with
incentives to testify become the central evidentiary elements of a wrongful conviction. 14 It is
frequently the case in these wrongful convictions that the incentives that prosecutors use to
obtain informant testimony, which may include cash payments, a release from prison, or leniency
in sentencing, are not disclosed to the jury. 15
As of 2000, 21% of wrongful capital convictions were influenced by informant testimony. 16
In 2004, the Center on Wrongful Convictions conducted a study of 51 men who were exonerated
of crimes for which they were sentenced to death, based in whole or in part on the testimony of
compensated witnesses with incentives to lie. 17 The study concluded that many of the jailhouse
informants who gave inaccurate testimony were promised leniency in their own cases, or were
themselves guilty of the crimes in question and hoped to draw suspicion away from
themselves. 18 Of 111 death row exonerations surveyed in 2004, 45.9% were influenced by false
snitch testimony. 19 II. THE HISTORY OF SNITCH TESTIMONY
The practice of jailhouse informant testimony and its problems have changed little over the
course of history. Throughout common law history, snitches have been a common phenomenon,
and it has long been recognized that their mixed motives undermine the credibility of their
testimony. 20 The resulting system “produced a cycle of betrayal in which each snitch knew he
might find himself soon in the dock confronted by another snitch.” 21 The case of Charles Cane—
an eighteenth century man who provided evidence that sent two men to their deaths in 1755—
illustrates this dynamic. 22 Cane was soon himself “snitched on.” Following his hanging at
Tyburn in 1756, the clergyman who administered his last rites commented that “Cane had
expected ‘nothing less than hanging to be his fate at last, but not of the evil day’s coming so
soon.’” 23
13 Informants, THE INNOCENCE PROJECT, http://www.innocenceproject.org/understand/Snitches-
Informants.php (last visited Dec. 21, 2010).
14 Id.
15 Id.
16 SCHECK ET AL., supra note 1, at 156.
17 WARDEN, supra note 2, at 3.
18 Id.
19 Id. at 14.
20 WARDEN, supra note 1, at 2.
21 Id.
22 Id.
23 Id.
3

The snitch system arrived in the new world with the earliest European settlers. It is
noteworthy that the first documented wrongful conviction case in the United States involved a
snitch. 24 The case arose in Manchester, Vermont, in 1819. Brothers Jesse and Stephen
Boorn were suspected of killing their brother-in-law, Russell Colvin. Jesse was
put into a cell with a forger, Silas Merrill, who would testify that Jesse confessed.
Merrill was rewarded with freedom. The Boorn brothers were convicted and
sentenced to death, but saved from the gallows when Colvin turned up alive in
New Jersey. 25
Today, the snitch system still exists. As data from the Center on Wrongful Convictions
shows, criminal informants (often jailhouse informants) falsely testify solely to reduce
sentencing for their own crimes, be released from incarceration, or receive financial
compensation from the government. Although some wrongly convicted people have been
exonerated based on exculpatory evidence such as DNA testing or informant recantation, lying
informants continue to cause wrongful convictions.
III.
GIGLIO V. UNITED STATES: THE SUPREME COURT AND SNITCH TESTIMONY
The Supreme Court has reviewed a case that illustrates how snitch testimony, when misused,
can violate the constitutional rights of a defendant. In Giglio v. United States, prosecutors failed
to inform the jury of a promise of leniency made to its key witnesses in return for the
Defendant’s testimony—a promise that severely undermined the credibility of the witness on
whose testimony the government’s case depended. 26
Defendant John Giglio was convicted of passing forged money orders and sentenced to five
years imprisonment. While his appeal was pending, defense counsel discovered new evidence
indicating that prosecutors had failed to disclose a promise made to its key witness, Giglio’s
alleged co-conspirator, Robert Taliento, that Taliento would not be prosecuted if he testified
against Giglio. 27 Evidence submitted by the prosecution at trial showed that, in June 1966,
officials at the Manufacturers Hanover Trust Co. discovered that Taliento, who was a teller at the
bank, had cashed several forged money orders. It was on the basis of Taliento’s confessions to
FBI agents and his subsequent testimony before a grand jury that charges were brought against
Giglio to begin with; thereafter, he was named as Giglio’s unindicted co-conspirator with Giglio.
Taliento also testified against Giglio at his trial, describing Giglio as the instigator of the
scheme. Defense counsel vigorously cross-examined, seeking to discredit his testimony by
revealing possible agreements or arrangements for prosecutorial leniency:
24 Id.
25 Id.
26 405 U.S. 150, 153-55 (1972).
27 Id. at 152 n.2 (quoting from an affidavit of a prosecution attorney that “‘It was agreed that if ROBERT
EDWARD TALIENTO would testify before the Grand Jury as a witness for the Government, . . . he would not be . .
. indicted. . . . It was further agreed and understood that he, ROBERT EDWARD TALIENTO, would sign a Waiver
of Immunity from prosecution before the Grand Jury, and that if he eventually testified as a witness for the
Government at the trial of the defendant, JOHN GIGLIO, he would not be prosecuted.’”).
4

“[Counsel.] Did anybody tell you, at any time, that if you implicated somebody
else in this case that you yourself would not be prosecuted
“[Taliento.] Nobody told me I wouldn't be prosecuted.
“Q. They told you, you might not be prosecuted
“A. I believe I still could be prosecuted.
“Q. Were you ever arrested in this case or charged with anything in connection
with these money orders that you testified to
“A. Not at that particular time.
“Q. To this date, have you been charged with any crime
“A. Not that I know of, unless they are still going to prosecute.”
In summation, the Government attorney stated, ‘(Taliento) received no promises
that he would not be indicted.’ 28
However, a subsequent affidavit that the prosecution filed as part of its opposition to a new
trial confirmed that the prosecutor who had presented the government’s case before the grand
jury had indeed made promises of leniency to Taliento to elicit Taliento’s testimony against
Giglio. The prosecution claimed that the Assistant U.S. Attorney who had been responsible for
the Government’s presentation to the grand jury had assured the prosecuting trial attorneys that
no promise with Taliento had been made. 29 The Court noted that “[t]he United States Attorney,
Hoey, filed an affidavit stating that he had personally consulted with Taliento and his attorney
shortly before trial to emphasize that Taliento would definitely be prosecuted if he did not testify
and that if he did testify he would be obliged to rely on the ‘good judgment and conscience of the
Government’ as to whether he would be prosecuted.” 30
Ultimately, however, the prosecution’s attempt to downplay their agreement for Taliento’s
grand jury testimony proved insufficient to overcome Giglio’s due process interests in full
disclosure of all material evidence, including evidence of the prosecution’s leniency agreement
with Taliento, which compromised the credibility of Taliento’s testimony. Relying in particular
on Napue v. Illinois, 31 the Court held that the prosecutions failure to present all material evidence
to the jury constituted a violation of due process and required a new trial. 32 The court noted that
whether the nondisclosure was a result of negligence or design, it is the
responsibility of the prosecutor. The prosecutor’s office represents the
government in courts of law and as such it is the spokesman for the Government.
A promise made by a prosecuting attorney must be attributed, for these purposes,
to the Government. To the extent this places a burden on the large prosecution
offices, procedures and regulations can be established to carry that burden and to
ensure communication of all relevant information of each case to every lawyer
who deals with it. 33
28 Id. at 151-52.
29 Id. at 153 n.3 (quoting from a prosecution affidavit that “[prosecution attorney] DiPaola . . . advised that
Mr. Taliento had not been granted immunity but that he had not indicted him because Robert Taliento was very
young at the time of the alleged occurrence and obviously had been overreached by the defendant Giglio.”).
30 Id. at 152.
31 360 U.S 264 (1959) (holding that the Due Process Clause requires prosecutors to present all material
evidence related to the jury).
32 Giglio, 405 U.S. at 155.
33 Id. at 154.
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Moreover, the Court recognized that the prosecution’s case depended almost entirely on
Taliento’s testimony; without it there could have been no indictment and no evidence to carry the
case to the jury. Taliento’s credibility as a witness was therefore an important issue in the case,
and evidence of any understanding or agreement as to a future prosecution would be relevant to
his credibility and the jury was entitled to know of it. These aspects of Giglio are significant
because they reinforce the prosecutorial obligation—which can be negated neither by intentional
nondisclosure nor inadvertent error—to collect and disclose impeaching evidence about
informants. This requirement sheds light on the function of the Due Process Clause as the
primary guarantor of due process, and a central constitutional check against wrongful
convictions. 34
IV.
PROBLEMS WITH SNITCH TESTIMONY IN TODAY’S CRIMINAL JUSTICE SYSTEM
The use of criminal informants is a useful asset to our criminal justice system. However,
there are significant risks involved where the practice of informant testimony goes unregulated
and undocumented. Today, police and prosecutors continue to cut deals with criminals for
information in connection with all types of cases, but the use of snitch testimony goes without
oversight and quality control and leads to innocent people being wrongly convicted, an increase
in official corruption, and a lack of respect for the law. 35
A. Criminal Investigations Heavily Depend on Snitch Testimony
Criminal informants are law enforcement’s primary investigative tool, particularly in drug
cases. Federal statistics indicate that 60% of drug defendants cooperate with prosecutors in some
fashion in exchange for lenience, the dismissal of charges, reduced sentences, or to avoid
arrest. 36
As investigating police increasingly rely on criminal informants, prosecutorial reliance on
criminal informant testimony also increases. 37 Prosecutors themselves are often the first to
complain about this dynamic, commenting that
[t]hese [drug] cases are not very well investigated . . . our cases are developed
through cooperators and their recitation of the facts. Often, in DEA, you have
agents who do little or no follow up so when a cooperator comes and begins to
give you information outside of the particular incident, you have no clue if what
he says is true.” 38
34 Id. at 153-155.
35 Law Enforcement Confidential Informant Practices: Hearing Before the Subcomm. on Crime,
Terrorism, and Homeland Security, and the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H.
Comm. on the Judiciary, 110th Congress (Statement of Alexandra Natapoff, Professor of Law, Loyola Law School,
Los Angeles).
36 U.S. BUREAU OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 439 tbl.5.34 (2003) (noting
that thirty percent of federal drug defendants received on-the-record cooperation credit under USSG Sec. 5K1.1).
37 Alexandra Natapoff, Snitching: The Institutional and Communal Consequences, 73 U. CIN. L. REV. 645,
652 (2004).
38 Yaroshefsky, supra note 10, at 945.
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Another prosecutor commented that “the biggest surprise is the amount of time you spend with
criminals. You spend most of your time with cooperators. It’s bizarre.” 39 Still another prosecutor
describes the phenomenon of “falling in love with your rat”:
You are not supposed to, of course. . . . But you spend time with this guy, you get
to know him and his family. You like him . . . the reality is that the cooperator’s
information often becomes your mind set. . . . It’s a phenomenon and the danger
is that you feel all warm and fuzzy about your cooperator, you come to believe
that you do not have to spend much time or energy investigating the case and you
don’t. Once you become chummy with your cooperator, there is a real danger that
you lose your objectivity. 40
As police and prosecutors become invested in their informants’ stories, they may lack the
objectivity to know when their sources are lying. 41 Their relationship becomes one of codependence,
where criminal informants are punished for silence and rewarded for producing
inculpatory information, even when that information is inaccurate. In exchange, informants
extract promises of leniency from police and prosecutors and depend on them to guard the
informants’ identities. This system not only fails to weed out inaccurate information obtained
from criminal informants, but it serves to protect the informants by concealing their identities,
and makes the erroneous information they provide the centerpiece of a case. 42
B. Juries Believe Compensated Informants
Courts have recognized the inherent unreliability of compensated informants, going so far as
to take judicial notice in some cases of their tendency to lie. 43 Juries, however, in general do not
share this justified skepticism regarding the reliability of compensated informant testimony.
Many wrongful convictions come about where an innocent defendant refuses to plead guilty as
part of a plea agreement, goes to trial, and is convicted because the jury accepts the testimony of
a compensated informant as credible and accurate. 44 Such juries are often not advised that
compensated informants—like expert witnesses—are paid by one party, which inherently makes
their testimony biased as compared to an uncompensated witness. 45 Juries often afford undue
credibility to criminal informant testimony on the assumption they have “inside knowledge”
about the crime. Such assumptions, which may operate on a subconscious level, are not easily
dispelled by cautionary instructions. Juries who place undue weight on the testimony of
compensated informants are a major factor contributing to the prevalence of wrongful
convictions. 46
(2000).
witnesses).
39 Id. at 937-38.
40 Id.
41 Id. at 943-44.
42 Natapoff, supra note 5, at 112.
43 Id. at 122.
44 Id. at 112.
45 George C. Harris, Testimony for Sale: The Law and Ethics of Snitches and Experts, 28 PEPP. L. REV. 1, 4
46 Id. at 49-58 (describing inadequate procedural controls governing prosecution use of cooperating
7

Though compensated informants may seem unreliable, courts have traditionally permitted
them to testify on the assumption that cross-examination adequately tests an informant’s
truthfulness. 47 However, the assumption that cross-examination adequately tests the reliability of
a compensated informant’s testimony is flawed: Cross-examination may be insufficient to test
witness credibility where a testifying compensated informant is the only witness to a crime,
whose account can be neither independently confirmed nor disproved. 48 Moreover, crossexamination
is often inadequate to test the truthfulness of an informant because the defense may
lack pre-trial access to the informant, or the details of the informants’ plea agreements. The
informant, on the other hand, has multiple opportunities to hone their version of events in
preparation for their testimony. Taken together, these factors make these witnesses difficult to
effectively cross-examine at trial. 49 A final factor to add to this dangerous mix is that, unlike
uncompensated witnesses, compensated informants have an incentive to maintain the
prosecution’s theory. 50 Scholars have noted that
[p]aradoxically, the more a witness’s fate depends on the success of the
prosecution, the more resistant the witness will be to cross-examination. A
witness whose future depends on currying the government’s favor will formulate
a consistent and credible story calculated to procure an agreement with the
government and will adhere religiously at trial to her prior statements. 51
C. The Use of Snitch Testimony is Unregulated
On November 16, 1979, Thomas Lee Goldstein, a 30-year-old Marine Corps veteran and
engineering student living in Long Beach, California, was arrested for the shooting death of John
McGinest. 52 No forensic or physical evidence linked Goldstein to the shooting, there was no
evidence that Goldstein had ever had contact with McGinest, and none of the eyewitnesses’
descriptions of the shooter matched Goldstein. 53 Two questionable pieces of evidence lead police
to prosecute Goldstein. The first was an identification that the police elicited from Loran
Campbell, an eyewitness to the crime. 54 The second was the testimony of Edward Fink, a heroin
addict, recidivist, and jailhouse informant. 55 Fink had worked as an informant for the Long
Beach Police Department for the previous ten years, giving police the concocted “confessions”
of others in exchange for leniency. Knowing Fink’s tenancy to share with police purported
confessions that he had allegedly heard from his cellmates, Long Beach police officers
deliberately transferred him to Goldstein’s jail cell. 56 After a single night with Goldstein, Fink
47 Hoffa v. U.S., 383 U.S. 293, 311 (1966) (upholding the use of a compensated informant on the reasoning
that the opportunity for cross-examination largely obviated due process concerns and reasoning that “[t]he
established safeguards of the Anglo-American legal system leave the veracity of a witness to be tested by crossexamination,
and the credibility of his testimony to be determined by a properly instructed jury.”).
48 Natapoff, supra note 5, at 123.
49 Id. 123-124.
50 Id. at 124.
51 Harris, supra note 45, at 54.
52 Brief for American Civil Liberties Union, et al. as Amici Curiae Supporting Respondent at 2, Van De
Kamp v. Goldstein, 555 U.S. 335 (2009).
53 Id. at 2.
54 Id.
55 Id.
56 Id. at 2-3.
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told the police that Goldstein had confessed the murder to him. 57 Police knew that Fink had
fabricated the confession, but prosecutors did not correct Fink when he subsequently testified
about the confession at trial, nor did they correct the record after Fink perjured himself by
testifying that he had received no benefit for his testimony against Goldstein or for his
participation as an informant against other defendants. 58 The truth was, the benefits that Fink
received for his testimony against Goldstein—three years of probation with only two months of
incarceration for grand theft, plus the dismissal of another theft charge, was typical of the
benefits that Fink had received over decades of informant participation. 59 Goldstein was
convicted of murder. 60
Throughout his imprisonment, Goldstein maintained his innocence. 61 In 2002—twenty two
years after his conviction—during an evidentiary hearing in federal district court on a petition for
habeas corpus that Goldstein had filed in 1998, he had an opportunity to present evidence
regarding Fink’s perjury. 62 The district court granted the writ, and the court of appeals
affirmed. 63 After the District Attorney’s unsuccessful attempt to retry Goldstein, he was released
in 2005, more than 24 years after his arrest. 64
Goldstein’s ordeal is an illustration of the destructive power that falsified informant
testimony can wield when it is adopted by police and prosecutors. The saga of Goldstein’s false
conviction and decades-long imprisonment has a tragic epilogue: Upon release, Goldstein filed a
civil rights action against the District Attorney’s Office to hold them accountable for their failure
to safeguard against convictions based on criminal informant testimony that was known to be
false. The federal trial courts and Ninth Circuit Court of Appeals rejected the prosecutors’
office’s claims of absolute immunity, but the Supreme Court reversed their judgment, holding
that “where a § 1983 plaintiff claims that a prosecutor’s management of a trial-related
information system is responsible for a constitutional error at his or her particular trial, the
prosecutor responsible for the system enjoys absolute immunity just as would the prosecutor who
handled the particular trial itself.” 65
Goldstein’s false conviction substantiates the observations of scholars that
informant testimony is a very clandestine, secretive and unregulated arena that yet
influences the outcome of millions of cases and investigations. It shapes the way
we lawyer, it shapes the way we judge, and it shapes what we call fair and good.
And yet, we don't see any evidence of it pop up on the public record. 66
57 Id. at 3.
58 Id. Prosecutors failed to correct Fink’s perjury because the Deputy District Attorney handling
Goldstein’s prosecution did not know of the benefits Fink had received for his testimony. This was because the
District Attorney of Los Angeles County and the administrative chiefs of the office had put no system in place by
which line prosecutors could learn of the deals struck with informants.
59 Id.
60 Id.
61 Id. at 4.
62 Van de Kamp v. Goldstein, 555 U.S. 335, 339 (2009).
63 Id.
64 Brief for American Civil Liberties Union, et al. as Amici Curiae Supporting Respondent at 4, Van De
Kamp v. Goldstein, 555 U.S. 335 (2009).
65 Id. at 348.
66 Critics Blast Informant System Cloaked In Secrecy, NPR,
http://www.npr.org/templates/story/story.phpstoryId=123647253 (last visited March 3, 2013).
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Goldstein’s ordeal is, sadly, far from unique. The Innocence Project maintains a searchable
database of wrongfully convicted defendants who have subsequently been exonerated—many
because of false testimony from criminal informants that was elicited by police and used by
prosecutors at trial. 67
V. REFORM RECOMMENDATIONS FOR MARYLAND AND BEYOND
A number of reforms that are available to policymakers could curb this alarming proliferation
of snitch testimony-based wrongful convictions. Maryland depends on jury instructions to
provide procedural protection against wrongful convictions based on unreliable testimony, even
though scholars have long observed that jury instructions alone are not a sufficient tool to
prevent juror reliance on—sometimes false—testimony by biased criminal informants. The
Maryland Criminal Pattern Jury Instructions (MCPJI) outlines the jury instructions regarding the
witness credibility, accomplice testimony, testimony by witnesses who have plead guilty, and
compensated witnesses testimony. The statute is included as Appendix A. This is not to say that
jury instructions are entirely without benefit—they put the court “on notice” that a criminal
informant has received some type of consideration for their testimony. However, additional
procedural safeguards are necessary to prevent criminal informants from falsely testifying in
court to begin with. Maryland should require prosecutors to preserve and present to the court
information about compensation that informants have received, such as information about any
promises made to an in-custody informant, the criminal history of an in-custody informant, and
prior cases in which an in-custody informant testified, modeled after the disclosure obligations
outlined in the Justice Project’s model statute on informant testimony. The model statute is
attached at Appendix B. Disclosure of this information would aid the court in determining
whether the criminal informant’s testimony is essential to the case and legitimate, thus providing
a safeguard against false testimony and a greater assurance of a fair trial to the Defendant.
Maryland should also require pre-trial reliability hearings to weed out unreliable or false
informant testimony before it reaches the jury, modeled after the pre-trial reliability hearings
described in section four of the Justice Project’s model statute. At the pre-trial reliability
hearings, the prosecution should be required to present any testimony obtained from criminal
informants, and the judge should make pre-trial admissibility rulings based on a number of
factors that bear on reliability and potential prejudice against the defendant, including any
promises the informant received for their testimony, other cases in which the informant has
testified, and the existence of independent corroborating evidence. Application of these factors in
a pre-trial admissibility hearing would help prevent the admission of false informant testimony at
trial, and would constitute a procedural safeguard that is vastly superior to mere jury
instructions. 68
67 Know the Cases, INNOCENCE PROJECT, http://www.innocenceproject.org/know/Browse-Profiles.php (last
visited Feb. 2, 2013).
68 The recommendations offered by the Justice Project and outlined in this section are consistent with those
that have been offered by many scholars and experts in the field. See, e.g., CALIFORNIA COMMISSION ON THE FAIR
ADMINISTRATION OF JUSTICE, REPORT AND RECOMMENDATIONS REGARDING INFORMANT TESTIMONY 1, 7-9 (2007)
(calling for the adoption of internal policies in prosecutors’ offices to preserve information about agreements
reached with criminal informants and prohibitions against convictions based on criminal informant testimony where
corroborating evidence does not exist); see also Law Enforcement Confidential Informant Practices: Hearing Before
the Subcomm. on Crime, Terrorism, and Homeland Security, and the Subcomm. on the Constitution, Civil Rights,
and Civil Liberties of the H. Comm. on the Judiciary, 110th Congress (Statement of Alexandra Natapoff, Professor
10

CONCLUSION
Reforms of our criminal justice system’s use of testimony by criminal informants are
necessary at both the state and federal levels to ensure the fair administration of justice and to
prevent profoundly damaging wrongful convictions. The unregulated use of criminal informants
coupled with deficient procedural safeguards against the admission of unreliable or false
informant testimony poses a substantial risk to innocent criminal defendants. Implementation of
the commonsense safeguards outlined above will provide systemic safeguards to protect innocent
defendants from wrongful convictions, hold corrupt officials and prosecutorial agencies
accountable for misconduct, restore balance to our adversarial system of criminal prosecution,
and preserve human dignity.
of Law, Loyola Law School, Los Angeles) (recommending federal adoption of similar data-preservation measures
and corroboration requirements, and additionally recommending judicial review of informant testimony similar to
the procedures outlines in the Justice Project model statute described supra). A video recording of Professor
Natapoff’s testimony is available online at http://www.youtube.com/watchv=Mav9tOvmWcQ.
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MCPJI-3:10 Credibility of Witnesses
APPENDIX A.
MARYLAND CRIMINAL
PATTERN JURY INSTRUCTIONS
You are the sole judge of whether a witness should be believed. In making this decision, you may apply your own
common sense and every day experiences.
In determining whether a witness should be believed, you should carefully judge all the testimony and evidence and
the circumstances under which the witness testified. You should consider such factors as:
(1) the witness’s behavior on the stand and manner of testifying;
(2) did the witness appear to be telling the truth
(3) the witness’s opportunity to see or hear the things about which testimony was given;
(4) the accuracy of the witness’s memory;
(5) does the witness have a motive not to tell the truth
(6) does the witness have an interest in the outcome of the case
(7) was the witness’s testimony consistent
(8) was the witness’s testimony supported or contradicted by evidence that you believe and
(9) whether and the extent to which the witness's testimony in the court differed from the statements made by the
witness on any previous occasion.
You need not believe any witness, even if the testimony is uncontradicted. You may believe all, part or none of the
testimony of any witness.
MCPJI-3:11 Testimony of Accomplice
A.
You have heard testimony from ____, who was an accomplice. An accomplice is one who knowingly and
voluntarily cooperated with, aided, advised or encouraged another person in the commission of a crime.
You must first decide whether the testimony of ____ was corroborated before you may consider it. The defendant
cannot be convicted solely on the uncorroborated testimony of an accomplice. However, only slight corroboration is
required. This means there must be some evidence in addition to the testimony of ____ tending to show either (1)
that the defendant committed the crime charged or (2) that the defendant was with others who committed the crime,
at the time and place the crime was committed.
If you find that the testimony of ____ has been corroborated, it should be considered with caution and given such
weight as you believe it deserves. If you find that the testimony of ____ has not been corroborated, you must
disregard it and may not consider it as evidence against the defendant. Remember, the defendant cannot be
convicted solely on the uncorroborated testimony of an accomplice.
B.
You have heard testimony from ____, who may have been an accomplice. An accomplice is one who knowingly and
voluntarily cooperated with, aided, advised or encouraged another person in the commission of a crime.
If you are not convinced that ____ was an accomplice, you should treat that testimony as you would treat the
testimony of any other witness. On the other hand, if you are convinced that ____ was an accomplice, you must then
decide whether that testimony was corroborated before you may consider it. The defendant cannot be convicted
solely on the uncorroborated testimony of an accomplice. However, only slight corroboration is required. This
means there must be some evidence in addition to the testimony of ____ tending to show either (1) that the
defendant committed the crime charged or (2) that the defendant was with others who committed the crime, at the
time and place the crime was committed.
If you find that the testimony of ____ has been corroborated, it should be considered with caution and given such
weight as you believe it deserves. If you find that ____ was an accomplice, but that [his/her] testimony has not been
corroborated, you must disregard it and may not consider it as evidence against the defendant. Remember, the
defendant cannot be convicted solely on the uncorroborated testimony of an accomplice.
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MCPJI-Cr 3:12 Witness Who Has Pleaded Guilty
You have heard evidence that ____ has pleaded guilty to a crime arising out of the same events for which the
defendant is now on trial. The guilty plea of this witness must not be considered as evidence of guilt against the
defendant. You may consider the guilt of the witness in deciding whether the witness is telling the truth, but for no
other purpose.
MCPJI-Cr 3:13 Witness Promised Benefit
You may consider the testimony of a witness who [testifies] [has provided evidence] for the State as a result of [a
plea agreement] [a promise that he will not be prosecuted] [a financial benefit] [a benefit]. However, you should
consider such testimony with caution, because the testimony may have been influenced by a desire to gain
[leniency] [freedom] [a financial benefit] [a benefit] by testifying against the defendant.
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APPENDIX B
MODEL BILL FOR INCREASING
THE EVIDENTIARY VALUE
OF JAILHOUSE INFORMANT TESTIMONY
An Act:
Section I. Purpose.
The purpose of this Act is to ensure that only reliable jailhouse informants are permitted to testify at trial, and to
ensure that when such an informant testifies, the jury is fully informed. Because in-custody informants have very
strong incentives to fabricate or elaborate testimony in order to receive lenient treatment, courts should view such
testimony with skepticism. This act should be interpreted consistent with the goal of keeping unreliable informant
testimony out of court.
Section II. Definitions.
A. As used in this section, “in-custody informant” means a person, other than a co-defendant, percipient
witness, accomplice, or co-conspirator whose testimony is based upon statements made by the defendant
while both the defendant and the informant are held within a correctional institution.
B. As used in this section, “consideration” means any plea bargain, bail consideration, reduction or
modification of sentence, or any other leniency, benefit, immunity, financial assistance, reward, or
amelioration of current or future conditions of incarceration in return for, or in connection with, the
informant’s testimony in the criminal proceeding in which the prosecutor intends to call him or her as a
witness.
Section III. Disclosure Obligations of the Prosecution.
In any criminal trial or proceeding in which the prosecution intends to call an in-custody informant to testify,
pursuant to relevant state rules governing discovery, the prosecution must obtain and disclose the following
information to the defense:
A. A written statement setting out any and all consideration promised to, received by, or to be received by the
in-custody informant. This requirement applies even if the prosecution is not the source of the
consideration.
B. The complete criminal history of the in-custody informant.
C. The names and addresses of any and all persons with information concerning the defendant’s alleged
statements, including but not limited to: law enforcement and/or prison officers to whom the informant
related the alleged statements; other persons named or included in the alleged statement; and other persons
who were witness and who can be reasonably expected to have been witness to the alleged statements.
D. Any prior cases in which the in-custody informant testified and any consideration promised to or received
by the in-custody informant, provided such information may be obtained by reasonable inquiry.
E. Any and all statements by the in-custody informant concerning the offense charged.
F. Any other information that tends to undermine the in-custody informant’s credibility.
G. This section does not alter other disclosure or discovery obligations imposed by state or federal law.
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H. Any materials that the prosecution must disclose under this section are admissible to impeach the
credibility of the in-custody informant if such informant testifies at trial.
Section IV. Requirement for a Pre-Trial Admissibility Hearing.
A. Prior to trial, the prosecution must apply to the trial court and request that the trial court admit the
testimony of the in-custody informant. In such hearing, the court must only admit the testimony of the incustody
informant if it concludes that the informant is reliable, considering such factors as the
consideration offered to the in-custody informant, the complete criminal record of the in-custody informant,
the alleged statements made by the accused, the time, place, and circumstances of the alleged statements,
the time, place, and circumstances of the alleged disclosure to law enforcement officials, any inconsistent
statements by the in-custody informant, other cases in which the in-custody informant testified, and any
consideration promised or received in those cases, the quality of corroborating evidence, and any other
evidence relevant to the in-custody informant’s credibility. The prosecution shall bear the burden of proof.
B. The judge should only admit the in-custody informant’s testimony if corroborated by other such evidence
as independently tends to connect the defendant with the commission of the offense charged or the special
circumstance(s) or aggravating factor(s) to which the in-custody informant testifies. Such corroboration is
not sufficient if it merely shows the commission of the offense or the special circumstance (s) or
aggravating factor(s).
Section V. Jury Instructions.
Prior to sending the charges to the jury, the court should instruct the jury that in-custody informant testimony can be
especially unreliable and must be given special scrutiny. The court should also instruct the jury that they may
consider all of the factors listed in Section IV in evaluating the credibility of the in-custody informant. The jury shall
not be instructed that the court has already found that the in-custody informant is reliable.
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