attachment_id=996 - UDC Law Review

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
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