Everyday, we read newspaper articles or watch television reports that place a spotlight on the failures of the criminal justice system. The most heart wrenching and devastating stories involve the poor souls who were locked in a cage, for years and decades, for crimes they did not commit. We learn of their innocence though DNA evidence, which is so strong it completely and totally refutes juries, judges and prosecutors. But, these are just the cases where DNA evidence was involved.
It is important to remember these people, called exonerees, were convicted of crimes, supposedly based on evidence that proved their cases beyond a reasonable doubt. After the convictions, the cases went before appellate courts, where the convictions and sentences were upheld. At some point, we have to question how and why these innocent people were convicted of crimes when the irrefutable evidence proves their innocence. There are some common reasons why these convictions occur. One of the reasons this happens is because of the testimony of a “jailhouse snitch.”
In all fairness, the general public has not had the benefit of seeing how easily snitch testimony is created and put into action. I suspect most people believe that a prosecutor would not present false testimony. However, not all prosecutors burden themselves with determining whether the snitch testimony is truthful. Sometimes, it is not possible to determine if the snitch’s testimony is truthful. Either way, the testimony of a snitch should not be used to send innocent people to prison.
There may be some disbelief about how easy a snitch can concocted a story and peddle it to the government. In the documentary, The Fear of 13, Nick Yarris explains how and why he created a story to pin a murder on someone in an effort to minimize his confinement. Mr. Yarris’ effort backfired only because a proper investigation was done into his claims. Unfortunately, the majority of snitch testimony involves an alleged jailhouse confession by the accused. Under these circumstances, it is very unlikely, even impossible, that any investigation could prove or disprove an alleged jailhouse confession. The jailhouse snitch is counting on the fact that his story cannot be disproven. To some extent, so is the prosecutor.
The purpose of this post is to reveal the underbelly of the criminal justice system to the public. Also, I invite the government to completely ban the use of jailhouse snitch testimony.
The “jailhouse snitch” is a person who typically claims to have obtained incriminating statements and/or confessions from the accused. The snitch trades this information for his own benefit without any regard whatsoever for the truth of his testimony. The testimony of jailhouse informants, or “snitches,” is becoming an increasing problem in this state, as well as throughout the American criminal justice system. McNeal v. State, 551 So. 2d 151 (Miss. 1989). In the process of reaping their benefit, they are manipulating the system by helping to convict innocent citizens. See Curriden, “No Honor Among Thieves,” ABA Journal, June 1989, at 51. The Supreme Court of Mississippi warned:
An unholy alliance between con-artist convicts who want to get out of their own cases, law enforcement who’s running a training ground for snitches over at the county jail, and the prosecutors who are taking what appears to be the easy route, rather than really putting their cases together with solid evidence.
McNeal v. State, 551 So. 2d 151 at footnote 2 (Miss. 1989)
Further, the Mississippi Supreme Court advised that snitch testimony “is to be received and considered with caution, as from a polluted and suspicious source.” Dedeaux v. State, 125 Miss. 326, 87 So. 664 (1921); see also, Cool v. United States, 409 U.S. 100 (1972) (there is a “recognition that an accomplice may have a special interest in testifying, thus casting doubt upon his veracity”).
The United States Supreme Court has also expressed serious concern over testimony by a jailhouse snitch. The Supreme Court noted, “[t]he use of informers, accessories, accomplices, false friends, or any of the other betrayals which are ‘dirty business’ may raise serious questions of credibility.” On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). For these reasons, the Supreme Court has held that snitch testimony “ought not be passed upon…under the same rules governing other and apparently credible witnesses…” Crawford v. United States, 212 U.S. 183 (1909).
The Nevada Supreme Court recently noted, “a jailhouse incrimination is available in a fairly large number of homicide cases.” D’Agostino v. State, 107 Nev. 1001, 823 P.2d 283 (1991). In the D’Agostino matter, the court dealt with a jailhouse snitch who shared a cell with the defendant and it observed “[t]here is, of course, no way that D’Agostino could have defended himself against these kinds of unverifiable accusations.” The court reasoned, “[a]bsent any details as to time, place and victim, an accused who must face this kind of incriminating testimony is seriously and unfairly prejudiced when the jury comes together to deliberate as to whether he should live or die.” Further, the court held:
A legally unsophisticated jury has little knowledge as to the types of pressures and inducements that jail inmates are under to “cooperate” with the state and to say anything that is “helpful” to the state’s case. It is up to the trial judge to see that there are sufficient assurances of reliability prior to admitting the kind of amorphous testimony presented to keep this kind of unreliable evidence out of the hands of the jury
Snitches Lead to Wrongful Convictions
Jailhouse snitch testimony is arguably the single most unreliable type of evidence currently used in criminal trials. Article: Abolishing Jailhouse Snitch Testimony, 49 Wake Forest L. Rev. 1375. Criminal informants, or “snitches,” play a prominent role in this wrongful conviction phenomenon. Comment: The Faces of Wrongful Conviction Symposium: Beyond Unreliable: How Snitches Contribute to Wrongful Convictions, 37 Golden Gate U.L. Rev. 107. According to the Northwestern University Law School’s Center on Wrongful Convictions, 45.9 percent of documented wrongful capital convictions have been traced to false informant testimony, making “snitches the leading cause of wrongful convictions in U.S. capital cases.” Rob Warden, The Snitch System: How Snitch Testimony Sent Randy Steidl and Other Innocent Americans to Death Row, Center on Wrongful Convictions, Northwestern University School of Law, 2004. Snitches are deeply unreliable witnesses. Many are con artists, congenital liars, and practiced fraudsters. As compensated witnesses, all snitches have deep conflicts of interest. What is worse, jailhouse snitch testimony as a class is not only the least credible type of evidence, but it is also among the most persuasive to jurors because jailhouse informants typically allege to have personally heard defendants confess their guilt to the crimes charged. Id. Introduction of a defendant’s confession, from any source, radically changes the complexion of a case, particularly one lacking other evidence that directly implicates the defendant in the crime. Research studies demonstrate that jurors are simply ill equipped to evaluate the credibility of jailhouse informant testimony and consistently give such testimony far more weight than is due even if they are aware of the incentives jailhouse snitches receive or expect in exchange for their testimony. Id. The prejudicial effect of unreliable jailhouse snitch testimony is magnified by the context in which the evidence is presented to the jury. Jailhouse snitches are States’ witnesses, and the credibility of their testimony is likely substantially bolstered as a result. Prosecutors bolster jailhouse snitch testimony simply by putting them on the witness stand as State’s witnesses, signaling to the jury that the prosecutor believes their testimony is trustworthy. Id. As a result of both implicit and explicit prosecutorial bolstering, jailhouse snitch testimony tends to have an even greater, and potentially more prejudicial, effect on reliable fact-finding. Id.
But informants do not generate wrongful convictions merely because they lie. After all, lying hardly distinguishes informants from other sorts of witnesses. Rather, it is how and why they lie, and how the government depends on lying informants, that makes snitching a troubling distortion of the truth-seeking process. Informants lie primarily in exchange for lenience for their own crimes, although sometimes they lie for money. Alexandra Natapoff, Snitching: The Institutional and Communal Consequences, 73 U. Cin. L. Rev. 645, 652 (2004). In order to obtain the benefit of these lies, informants must persuade the government that their lies are true. Police and prosecutors, in turn, often do not and cannot check these lies because the snitch’s information may be all the government has. Additionally, police and prosecutors are heavily invested in using informants to conduct investigations and to make their cases. Id. As a result, they often lack the objectivity and the information that would permit them to discern when informants are lying. Ellen Yaroshefsky, Cooperation with Federal Prosecutors: Experiences of Truth Telling and Embellishment, 68 Fordham L. Rev. 917, 945 (1999). This gives rise to a disturbing marriage of convenience: both snitches and the government benefit from inculpatory information while neither has a strong incentive to challenge it. Comment: The Faces of Wrongful Conviction Symposium: Beyond Unreliable: How Snitches Contribute to Wrongful Convictions, 37 Golden Gate U.L. Rev. 107. The usual protections against false evidence, particularly prosecutorial ethics and discovery, may thus be unavailing to protect the system from informant falsehoods precisely because prosecutors themselves have limited means and incentives to ferret out the truth. Ellen Yaroshefsky, Cooperation with Federal Prosecutors: Experiences of Truth Telling and Embellishment, 68 Fordham L. Rev. 917, 945 (1999).
Jailhouse snitch testimony, in fact, is so likely to make a material difference to the outcome of close cases, and so likely to be false, that permitting such witnesses to testify, absent direct corroboration through electronic recording or some other similarly reliable method, should be flatly banned. Id. Numerous commentators have proposed modest fixes to the jailhouse snitch problem. Some have urged the conduct of pretrial reliability hearings. Others have argued for enhanced disclosure obligations regarding informant background and testimony. Still other fixes have been proposed. But given the depth to which jailhouse testimony is compromised, these modest proposals are simply inadequate. Anything less than total abolition of jailhouse snitch testimony is fundamentally insufficient to address what is perhaps the most outrageous and destructive prosecutorial practice currently tolerated by law.
Jailhouse Snitch Testimony is Fundamentally and Pervasively Unreliable
Exoneration studies have identified a set of recurrent causes of wrongful convictions, including false confessions, mistaken eyewitness testimony, and faulty forensic evidence. See, e.g., Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 8-9 (2011); Samuel R. Gross et al., Exonerations in the U.S., 1989 Through 2003, 95 J. Crim. L. & Criminology 523, 542-44 (2005) However, no evidence is more intrinsically untrustworthy than the allegations of a jailhouse snitch. See, e.g., The Justice Project, Jailhouse Snitch Testimony: A Policy Review 1 (2007). According to some wrongful conviction scholars, jailhouse snitch testimony is the single greatest cause of wrongful convictions. See Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21, 57 (1987) (reporting that jailhouse informants testified falsely in 117 of the 350 wrongful convictions studied); Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 6 (2009). This should not be surprising. It is hard to imagine more facially untrustworthy evidence.
The most dangerous informer of all is the jailhouse snitch who claims another prisoner has confessed to him. Stephen S. Trott, Words of Warning for Prosecutors Using Criminals as Witnesses, 47 Hastings L.J. 1381, 1383 (1996). The snitch now stands ready to testify in return for some consideration in his own case. Sometimes these snitches tell the truth, but more often they invent testimony and stray details out of the air. Id. at 1394.
The practice of using jailhouse snitches in serious criminal cases is both pervasive and, as a direct result, a major cause of error in the criminal justice system. Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 6 (2009). Although it had long been apparent that jailhouse snitch testimony was sometimes extremely unreliable, the strong link between jailhouse snitches and wrongful convictions has only become clear recently thanks to the still-breaking wave of DNA exonerations. Id. Analysis of the causes of wrongful convictions in these cases reveals that jailhouse snitches have been involved in a surprisingly large percentage of known wrongful convictions – twenty-one percent – according to Innocence Project founders Barry Scheck, Peter Neufeld, and Jim Dwyer. Jim Dwyer et al., Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted 246 (2000). According to the Northwestern University Law School’s Center on Wrongful Convictions, 45.9 percent of documented wrongful convictions in capital cases involved testimony by jailhouse informants or by “killers with incentives to cast suspicion away from themselves, “making” snitches the leading cause of wrongful convictions in U.S. capital cases.” Rob Warden, The Snitch System: How Snitch Testimony Sent Randy Steidl and Other Innocent Americans to Death Row, Center on Wrongful Convictions, Northwestern University School of Law, 2004. The Commission on Capital Punishment convened by former Illinois Governor George Ryan concluded that testimony from jailhouse informants appeared to be a major cause of wrongful convictions in the cases it looked at involving persons sentenced to death in Illinois. George H. Ryan, Report of the Governor’s Commission on Capital Punishment 7-8 (2002).
Jailhouse Informants Face Overwhelming Temptations to Commit Perjury
Jailhouse snitches testify not out of the goodness of their hearts, but to obtain one or more of a variety of incentives typically offered to them. Article: Abolishing Jailhouse Snitch Testimony, 49 Wake Forest L. Rev. 1375. These incentives range from almost trivial benefits, like cigarettes, to improved jail conditions and cash payments, up to the gold standard of “cooperation benefits” – release or reduction of jail sentences. Caren Myers Morrison, Privacy, Accountability, and the Cooperating Defendant: Towards a New Role for Internet Access to Court Records, 62 Vand. L. Rev. 921, 935-36 (2009). Indeed, testifying against fellow inmates may often constitute a prisoner’s only hope of escaping a substantial prison term. See Carl N. Hammarskjold, Comment, Smokes, Candy, and the Bloody Sword: How Classifying Jailhouse Snitch Testimony as Direct, Rather than Circumstantial, Evidence Contributes to Wrongful Convictions, 45 U.S.F. L. Rev. 1103, 1106 (2011) (citing Maxwell v. Roe, 628 F.3d 486, 505 n.10 (9th Cir. 2010)) (describing one jailhouse snitch’s boast to have lied in exchange for “$ 30.00 from petty cash” and “some smokes and candy”); Morrison, supra note 18 (noting that a “successful cooperator … might ultimately get years off his sentence or even avoid prison altogether”). The unscrupulous inmate thus faces powerful temptations to serve as a jailhouse snitch. As the Fifth Circuit has observed, “It is difficult to imagine a greater motivation to lie than the inducement of a reduced sentence.” United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987). Another court noted that it was “obvious” that cooperation premised on promises of leniency or immunity “provides a strong inducement to falsify” testimony. United States v. Meinster, 619 F.2d 1041, 1045 (4th Cir. 1980). Even in cases where leniency or immunity is not at stake, the prospect of receiving some tangible reward for false testimony can be irresistible. As one attorney commented, “[w]hen you dangle extra rewards, furloughs, money, their own clothes, stereos, in front of people in overcrowded jails, then you have an unacceptable temptation to commit perjury.” Robert Reinhold, California Shaken over an Informer: He Shows How to Fabricate a Prisoner’s Confession, N.Y. Times, Feb. 17, 1989, at A17 (quoting Robert Berke, a lawyer for California Attorneys for Criminal Justice).
Compensated Snitches Are Inherently Biased
A jailhouse informant is the quintessential self-interested witness. Article: Abolishing Jailhouse Snitch Testimony, 49 Wake Forest L. Rev. 1375. Anglo-American law has long recognized the potentially distorting effects of self-interest on the accuracy and reliability of legal proceedings. See United States v. Murphy, 41 U.S. (16 Pet.) 203, 210 (1842). Indeed, “self-interested witnesses were barred from testifying under early common law,” and informers in particular were viewed as incompetent witnesses if they stood to directly gain some material benefit from their testimony. Article: Abolishing Jailhouse Snitch Testimony, 49 Wake Forest L. Rev. 1375 Human judgment is almost inevitably influenced, consciously or unconsciously, by perceived self-interest. See Sean J. Griffith, Deal Protection Provisions in the Last Period of Play, 71 Fordham L. Rev. 1899, 1947-48 (2003)(stating that the existence of self-serving bias has been established in numerous studies). Where persons must decide which of two positions to adopt or accept as true, those who stand to benefit from taking one position rather than another tend to favor the position that furthers their own self-interest. See Ward Farnsworth, The Legal Regulation of Self-Serving Bias, 37 U.C. Davis L. Rev. 567, 569 (2003) (“It has long been understood that when people are better off if something is true, they become more likely to perceive it as true.”). Recognition of the biasing effect of self-interest should provide a significant obstacle against such conduct in criminal cases.
In contrast, a criminal defendant is typically helpless to counter testimony provided by a lying jailhouse informant. This is because defendants cannot usually put on their own “jailhouse snitch,” so criminal defendants lack any opportunity to fight back on an even playing field. In criminal trials there is no “battle of snitches” that might balance competing versions of events. The criminal defendant can try, as many have, to call other inmates to testify that the defendant did not make any jailhouse confession. See, e.g., Short v. Sirmons, 472 F.3d 1177, 1190 (10th Cir. 2006) (holding that the impeachment testimony of a fellow “cellmate” was not material). But such testimony is, on its face, usually irrelevant, and courts will often bar it as such. Id. Even when allowed, however, it is not likely to be effective. After all, such witnesses cannot prove the negative – that an alleged confession did not actually occur – if the jailhouse informant testifies, as an untruthful jailhouse informant invariably will, that the confession was made out of earshot of other prisoners. Article: Abolishing Jailhouse Snitch Testimony, 49 Wake Forest L. Rev. 1375. Because “payment” in terms of leniency almost always is granted by the prosecutor after the informant testifies, the informant readily understands that the informant’s chances of getting rewarded are contingent on his delivery of credible incriminating evidence against the defendant. Id.
Jailhouse Snitch Testimony Is Highly Persuasive Evidence
Jailhouse snitch testimony is problematic for another reason. There is, by and large, only one thing to which a jailhouse snitch can testify: that a fellow inmate confessed, and confession evidence is widely acknowledged to possess unique potency. Bruton v. United States, 391 U.S. 123, 139 (1968) (White, J., dissenting). The Supreme has Court observed that confessions are “probably the most probative and damaging evidence that can be admitted.” Id. One prominent evidence scholar asserted “introduction of a confession makes the other aspects of a trial in court superfluous.” C. McCormick, Handbook of the Law of Evidence 316 (2d ed. 1983). Research confirms that evidence that the defendant has confessed greatly increases the odds of conviction. Saul M. Kassin & Katherine Neumann, On the Power of Confession Evidence: An Experimental Test of the Fundamental Difference Hypothesis, 21 Law & Hum. Behav. 469, 471 (1997).In a study conducted by Kassin and Neumann, researchers presented mock jurors with a variety of evidence of guilt and found that jurors were far more likely to convict suspects when the evidence included a confession than when other types of traditional evidence, such as eyewitness identifications or physical evidence, were presented. Id. They thus concluded “confession evidence has a greater impact on jurors – and is seen as having a greater impact by jurors – than other potent types of evidence.” Id.
Secondary confessions – that is, confessions made to witnesses (other than police officers) – are likely not as persuasive to jurors as direct confessions. Lisa Dufraimont, Regulating Unreliable Evidence: Can Evidence Rules Guide Juries and Prevent Wrongful Convictions?, 33 Queen’s L.J. 261, 274 (2008). Jurors do, as a general matter, discount secondary confession evidence to some extent, and jurors may often be unwilling to convict based on secondary confession evidence alone. Id. However, secondary confession evidence remains extremely potent. “Since few species of evidence are as powerful as an acknowledgement of guilt from the mouth of the accused, jailhouse informant testimony can be highly persuasive.” Id. Secondary confession evidence is likely to be particularly critical in “close cases.” Article: Abolishing Jailhouse Snitch Testimony, 49 Wake Forest L. Rev. 1375. That is, jailhouse snitch testimony is likely to be most influential where the State has some other evidence of guilt, but that other evidence is weak. Cf., Saul M. Kassin & Holly Sukel, Coerced Confessions and the Jury: An Experimental Test of the “Harmless Error” Rule, 21 Law & Hum. Behav. 27, 27 (1997) (noting that evidence of coerced confessions was extremely influential in a test case where other evidence was weak). And these cases are precisely the cases in which jailhouse snitches are most likely to be used. Jeffrey S. Neuschatz et al., The Effects of Accomplice Witnesses and Jailhouse Informants on Jury Decisionmaking, 32 Law & Hum. Behav. 137, 138 (2008). After all, the State must pay a price to induce the jailhouse snitch to testify, and it can be expected to avoid doing so unless prosecutors believe that the testimony is needed. Id. Accordingly, jailhouse snitch testimony will typically only be introduced when the prosecutor is concerned about the sufficiency of her case, and the testimony will tend to have the greatest impact in precisely those cases. Id.
The prevailing assumption by courts, and the justification for admitting jailhouse snitch testimony absent any significant reliability review or assessment, is that jurors are capable of discounting unreliable snitch testimony as the facts and circumstances warrant. See, e.g., Short v. Sirmons, 472 F.3d 1177, 1190 (10th Cir. 2006) (holding that the impeachment testimony of a fellow “cellmate” was not material). This assumption is almost certainly incorrect. Research on fundamental attribution error demonstrates that jurors cannot properly discount snitch testimony, even when they know that snitches have incentives to lie. C. McCormick, Handbook of the Law of Evidence 316 (2d ed. 1983).
A snitch is highly prejudicial to anyone fighting for his liberty. Snitch testimony is unreliable. A snitch and his tales would contaminate the accused’s right to a fair trial and the judicial process. The government should not be permitted to use a snitch any more than someone who has “bought and paid for” the testimony of any witness. Moreover, there is no evidence that shows the counterweight of a jury instruction regarding the suspicious nature of a snitch is effective.
The bottom line is, too many innocent human beings have been locked in cages or sentenced to death on the perjured testimony of snitches. Rob Warden, The Snitch System: How Snitch Testimony Sent Randy Steidl and Other Innocent Americans to Death Row, Center on Wrongful Convictions, Northwestern University School of Law, 2004. We cannot and should not ignore this horrible fact. If the Blackstone ratio (it is better that ten guilty persons escape than that one innocent suffer), has any application in modern society, it mandates that innocent people must not be convicted on lies conjured by desperate people, who hope to leverage their freedom on their testimony. If the courts throughout the land had been vigilant in shaping the use and conditions surrounding snitch testimony, approximately 43 fellow humans would not have been wrongfully imprisoned for crimes they did not commit.