Of all the potentially bad evidence presented at trial, a very large universe indeed, none is worse, less credible, less worthy of belief than the jailhouse snitch. As Radley Balko notes:
The whole concept of jailhouse informants defies credulity. The very idea that people regularly confess to crimes that could put them in prison for decades or possibly even get them executed to someone they just met in a jail cell and have known for all of a few hours is and has always been preposterous. Not to mention the fact that these are people whose word prosecutors wouldn’t trust under just about any other circumstance.
To say that prosecutors wouldn’t trust them is an understatement. These are the lowest of the low, the least credible of all, and to ask a prosecutor to believe them otherwise would bring about hysterical laughter. Except when they bring something a prosecutor needs, at which point they magically turn into the most believable guy ever.
Informant testimony has become such a critical tool for prosecutors precisely because it allows them to put on testimony that is a) damning, b) easy to manufacture and c) allows b) to happen while giving them plausible deniability. This isn’t to say that all prosecutors manufacture evidence by using jailhouse informants. It is to say that the way informants are treated by the courts makes it very easy to do so.
This is a problem of incentives. The snitch wants out. The prosecutor wants evidence to bolster his case, barely sufficient if at all, because he believes in the defendant’s guilt and the only problem is that there is a dearth of evidence to prove it.
Mind you, it doesn’t occur to the prosecutor that the lack of evidence might mean that the defendant didn’t do it; it just means they haven’t gotten their hands on the right evidence to prove it, because of course he did it. The prosecutor, the cops, just know it. They just know it.
And unsurprisingly, they’re often completely wrong:
The Northwestern Law School’s Center on Wrongful Convictions found in 2005 that false snitch testimony is the leading cause of wrongful convictions in capital cases in the modern era of the death penalty, implicated in nearly half of the 111 death row exonerations at that time. (As of May 4, there have been 153 death row exonerations.)
The relative faults in the use of jailhouse snitches are obvious, but offset by the incentives to use them, coupled with the fact that it isn’t impossible that a prisoner tells another prisoner of his crimes. One problem is that guys in jail need to prove they’re tough so that others don’t take advantage of them, physically and otherwise.
And being a member of a generally less than entirely honorable group of people, he rushes to the prosecutor to see how he can use it to his advantage. Nobody snitches without anticipation of benefit, and snitching has been refined to the point where they’ve got every base covered for plausible deniability. This ain’t their first snitch rodeo.
In Texas, a law has been proposed to put a limit on the use of jailhouse snitches.
But a bill pending before the Texas Legislature would address the problem by banning all incentivized informant testimony in death penalty cases. Its chances are slim, but if passed, the law would make Texas the first state in the nation to eliminate the use of all compensated testimony in capital cases. The bill would, theoretically, still allow certain informant testimony, from jailhouse snitches, but only if the defendant’s statements to the snitch are recorded — a measure that is akin to a model policy proposal supported by Northwestern’s Center on Wrongful Convictions and the Innocence Project.
The law is both extremely limited, in that it would only apply in death cases, and stands almost no chance of passage. But the fact that anyone thinks it worth proposing is a positive sign. The question remains how testimony so clearly and obviously fraught with unreliability is allowed in the first place.
If anyone but a prosecutor promised a benefit in exchange for testimony, it would be a crime. But then, snitches are “an important tool” for prosecutors, which somehow changes everything, a tip of the judicial hat to the critical need to convict people on whatever evidence a prosecutor can muster.
Of course, it’s not just an important tool, but a highly effective one. As for the price, time off for the snitch, it’s just another cost of doing business for the government and somebody, tacitly, decided to trust prosecutors enough to determine whether the trade-off is worth the cost.
But none of this alters the flaws of jailhouse snitch testimony. A cynical view would suggest that this is a way for the legal system to shut its collective eyes, put lipstick on the ugliest pig in the room, and direct the jury to convict. One of the most absurd moments at trial is listening to a prosecutor explain to a jury why his witness, the very person he would be most inclined to attack and destroy under any other circumstances, is now pure enough to marry his sister.
To hear a prosecutor describe the snitches’ “come to Jesus” moment, when he wants nothing more than to atone for his sins, to make it right with society and let the jury know the truth. would induce guffaws anywhere but in a courtroom. And then there’s the explanation for why he’s really, really telling the truth, because he only gets the benefit of walking if he tells the truth. If he lies, even to convict the defendant as the prosecutor explains with a face twisted in sincerity, he gets nothing. He knows that telling the truth is his only way out, and that, ladies and gentlemen of the jury, is what he has done here.
An alternative solution might be a judge’s refusal to be complicit in this testimonial sham, because testimony obtained by promises of benefit are inherently incredible and criminal under any other circumstances, but then judges don’t like to get in the way of “important tools” for conviction.
Then there are jurors who might be inclined to understand that the jailhouse snitch might not really have turned a new leaf and chosen to be the most honest witness ever, but jurors too seem to believe that the government would never tender a lying witness because the government is there to protect them and only wants justice. After all, if the government believes the defendant on trial is guilty enough to pay off the snitch, why should a juror doubt that the government doesn’t know what it’s doing. Except, of course, all those wrongly convicted guys, but then nobody gets to tell the jurors about them, because that’s not relevant testimony.
So other than during voire dire to gear the jury up for testimonial evidence of jailhouse snitches versus physical evidence, how can you deal with that tactic as a practical matter? When you get copies of 10 subpoenas to state prisons where the only connection to your client is that these guys were in his holding cell before being shipped off, it still doesn’t put the gun in your client’s hand. Just point out the prosecutor has no evidence but the word of others they put in prison?
I will never get used to comments like this. If there was an easy answer to the problem, it wouldn’t be a problem. Yet it is. What does that tell you?
Marc’s obviously not in touch with his inner SJW this morning, otherwise I’m sure he would have commiserated with you about this generally intractable problem rather than patriarchally assuming you wanted to brainstorm a few point fixes.
Meanwhile, I’m adding this to the list I’m maintaining for the next time I’m a juror. So far, I’ve got: (1) I can’t trust cops because sometimes they lie for no apparent reason; and (2) I can’t trust anybody the prosecutor can reward or punish, because sometimes they lie for apparent reasons. What am I missing?
And then there’s the non-lawyers’ “I dunno, let’s brainstorm it on a blog and we can fix this intractable problem that’s stymied thousands of the nation’s best lawyer forever” solution. This certainly makes me want to read non-lawyer comments.
I just call ’em like I see ’em. Where did I say I wanted to brainstorm it?
Last night on 60 Minutes, there was a report on the most successful snitch in US history. Michael Blutrich, a man who scammed over $400 mil of insurance money in Florida earmarked for the elderly, was turned into a snitch by the FBI to go after the Mafia in NY. His testimony put many big time mobsters away and the FBI tried unsuccessfully to get him off the hook in the Florida insurance scam for his incredible service. They failed and he got 16 years in a Florida state prison.
I guess the difference with this example is that he was wearing a wire, as you suggested in the proposed Texas law, and therefore the “believability” of a crook is not really in question.
So, this case shows the value of a snitch with a quid pro quo attached. This snitch needed an incentive. However, like you rightly said, the jury did not have to rely on his character alone for conviction. They just needed to “roll the tape.”
Perhaps there could be a role for the jailhouse snitch with the caveat that the prosecutor needs to reveal the deal to the jury and the judge has to give instructions that what they are about to hear needs to be heavily scrutinized. This way, the jury can evaluate the testimony for what it is worth (or not worth), but if it helps put the pieces together, it could be used as an ancillary tool for the prosecution.
In the absence of that, I highly doubt that the prisoners are going to be able to wear recording devices.
Ok. I am bracing for the rebuttal!
The distinction of tape versus trust is a world apart, and the two situations are not analogous.
I agree with your point that they are not analogous. However, I am not sure if we should totally get rid of all jailhouse testimony. I would like to think there is a middle ground to put that testimony in perspective in front of the jury so it carries the appropriate weight (that being very little in my opinion). Not being a lawyer, I look to your savvy legal mind to provide the answer, if any.
There’s no magic answer. Testimony is testimony, and jurors either believe or not. The arguments as to why it’s credible and why it’s not get made, and the jury decides. It’s not rocket science, and most of the time it’s sufficient to convict, even though the testimony is garbage, because people want to believe.
If we clap our hands three times, Tinkerbell will live?
At a public speaking group that I attend, we tried an experiment in which each person described an event (s)he had been in, and the others voted on whether they thought the account was true or false. I think there were a dozen exercises altogether. If you added up all the votes for all the statements, more were positive than negative, which confirms your statement that “people want to believe.” I find this a very strange trait in human nature. WHY do they want to believe a statement which they know could be false?
Must make your job very hard indeed.
Doesn’t the use of such unreliable testimony violate the rights of the accused in some way?
This seems really filthy. If we can’t convict them the right way and cheat in an effort to ‘get the bad guy’ don’t we become the bad guy?
One might think so, but the law says it’s cool. And if the law says it’s cool, and prosecutors implicitly vouch for the honesty of their witness, and it’s really helpful at getting a conviction, who says no? I mean, except us.
You want a record? You got it.
*Hand-delivered by jailhouse informant
*Widely considered damning to the defense’s chances.
*Two forensic handwriting experts will vouch for its authenticity.
Dear Sir: Two long days have we spent
in this sweltering cage of cement.
I am moved to repose
my life’s story in prose
in a gentleman’s trust. I lament
that the lawyer was killed in his fall.
He had opened a contest to all,
and when I learned I’d lost,
o’er the side he was tossed.
On reflection, the sin is quite small.
“there are jurors who might be inclined to understand that the jailhouse snitch might not really have turned a new leaf”
When I was a juror at a civil trial and not allowed to discuss anything I was hearing with anyone else, I am astonished in retrospect how well the plaintiff’s arguments worked on me. Less than 24 hours later after reflecting on what I heard, I realized that the plaintiff had somehow gotten me to accept a physically impossible scenario of what happened (defendant’s car would have had to have been almost 2 meters longer than it was). After my experiences I have no trouble believing that a prosecutor getting the last word at trial can convince jurors who have effectively been isolated, unable to discuss anything, just long enough to forget the absurdity of his argument. The jurors go into deliberations with the same absurdity in their heads and return a conviction in under an hour. We like to think we cannot be hoodwinked like those other mortals, but it is a professional hoodwinker v amateur skeptics.
Sort of like baseball. The home team has a huge advantage with “last licks.” Your story makes sense to me.
The part where I might disagree with John is that it’s not so much a primacy/recency issue (the last person to speak wins), but that there is an inherent desire to believe the government. We want to believe that the prosecution isn’t evil and wrong, because that would suggest that our society is a failure, so they enter into trial with the benefit of the doubt rather than the burden of proof.
“The question remains how testimony so clearly and obviously fraught with unreliability is allowed in the first place.”
Defense attorneys are hamstrung by each other. One person’s snitch is another person’s client, and the client’s interest in avoiding the grinder trump principled objections to how the sausage is made. Attorney/client privilege guarantees secrecy. Divide et impera.
This has nothing to do with defense attorneys or privilege whatsoever. Nothing.
Rep. Dutton (D-Houston) has been proposing this and similar bills for over a decade, and as far as I can tell, none of his death penalty legislation has passed. Last session he tried to restrict enforcement of the anti-abortion bill until 60 days after the death penalty was abolished.
As you stated, it “stands almost no chance of passage.”
Gotta appreciate his tenacity, though.
The snitch is an honorable guy,
He has no incentive to lie.
So he’ll get out of jail
If he tells the right tale–
And I’ve a bridge I’d like you to buy!
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