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.