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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. 2
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
Page 1: WHEN SNITCH TESTIMONY GOES WRONG: H
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