3/20/2011

By Emily Smith

            Informant testimony, or snitching, is an ingrained practice. It is a tool that dates back to English common law and has been “recognized and approved by the United States Congress, United States Courts and the United States Sentencing Commission.” Each of these regulatory bodies condones these concessions in order to ensure convictions; they allow prosecutors to offer incentives to otherwise unmotivated witnesses to get the bigger and badder defendant.[1]

            The problem is, often witnesses with the most information are those themselves involved in crime. They have more access to information, and by association, know more about lawlessness than the typical upstanding citizen. These people are also frequently less disposed to take the witness stand, perhaps fearing prosecution from the government, or retribution from their friends. Therefore, to loosen lips and ensure convictions, both the federal and state court systems allow prosecutor's the discretion to grant statutory immunity, reduce sentences, and offer money and other favors. Otherwise, the informant's all-important testimony would remain unwilling or unavailable. As the Tenth Circuit summarized, “[w]hen granted statutory immunity [or other incentives], the potential witness is given something of value by the government . . . ,” and “the government plainly gains something of value [too] – the testimony itself.”[2]Informant testimony, therefore, seems to be a win-win for everyone. It is one of history's oldest quid pro quos.

            Yet somehow, history, Congress, and the courts forgot the most important player: the defendant. Without him, the prosecutor and informant would not be here. There would be no deal to make, nor anything to gain. Nonetheless, the justice system sanctioned a practice that effectively negated the defendant's right to due process. Unable to offer the same incentives as the government, defendants are often subjected to blatantly false or misleading testimony. In fact, 49% of those wrongly convicted and sentenced to death faced this fate because of crooked testimony.[3] Is reliance on this “essential” practice, really necessary to “the effectiveenforcement of the criminal law?”[4]

            The reasons the prosecutor and informant accept this system are clear, but it is less obvious why the courts sanctioned the practice. Their justifications seem to rest on the differences between the prosecution and defense. While a defense witness can lie or tell the truth as well as a plaintiff's witness, the defendant actually has at least one advantage over his prosecutorial opponent: he is not a government employee. He is, therefore, able to resort to extralegal measures. He can pressure witnesses into testifying, threatening their lives or livelihood. Because these measures are unavailable to the prosecution, the plaintiff is given an arsenal of his own to wield – one within the law. Thus, the court may merely be trying to level the playing field, giving each party a way to incentivize testimony.

            But with this leveling, is the court sanctioning the use of extralegal measures? Creating a prosecutorial counter-measure seems to preemptively combat the threat without actually targeting the practice itself. Perhaps instead of sanctioning the defendant's use of extralegal jurisprudence, the court is merely recognizing an inherent difference between these witnesses and others. For instance, crimes involving informants often include some kind of close proximity to the defendant. The defendant and informant may have been involved in the crime together, they may share the same jail cell, or they may come from the same part of town. Regardless of the reason, this proximity gives the defendant an opportunity. Unlike a unknown and upstanding bystander, the defendant has the ability to punish these witnesses. Government deals, therefore, allow the prosecutor the “same” extra-legal power to motivate the unmotivated.

            The problem with this justification, however, is it runs counter the very idea of presumed innocence. A defendant is not guilty until he is proven at fault beyond a reasonable doubt. The justification for informant incentives, however, assumes the defendant is guilty. It presupposes that in every case of informant testimony, the defendant would take the law into his own hands and, if given the chance, he would ensure friendly testimony through non-adversarial means.

            No one can deny that the information that informants can provide is relevant to a trial. However, prosecutors are given almost unfettered discretion to offer the informant incentives, with courts rarely questioning the credibility of their witnesses.[5] The problem is that the informant's greed creates trouble when it is combined with the prosecutor's leeway and singular focus on conviction. Some additional sort of judicial oversight, therefore, seems necessary. There are three ways to conduct such supervision.

            The first is through perjury proceedings. Like any false testimony, spurious snitching can be remedied through judicial sanction. However, for perjury proceedings post-testimony to be an option, the informant's lies must be exposed. Furthermore, it seems doubtful that these informant actually care which side they support. Therefore, it is dangerous to merely place the burden on the snitch not to lie. Snitches are looking out for themselves, and if the best deal means bringing down a friend or making up a lie, the prosecutor has enormous power to make that act worthwhile. Informants have too much to gain by telling the prosecutor what he wants to hear. Often, they are even threatened with increased sentences if they do not comply with prosecution's “request.”[6] Lying just seems inevitable and courts should not structure the judicial system in way that encourages or sanctions false testimony.

            Assuming a defendant's conviction is based on a lie, a second way to scrutinize an informant's testimony is through the appellate process, ensuring that any harm is not only sanctioned, but reversed. However, post-trial analysis is inherently biased against the defendant. Found guilty by a neutral jury, a defendant no longer enjoys the right to presumed innocence. Thus, the court must requires the truth behind the informant's testimony be revealed before the defendant's presumption of innocence expires. Otherwise, a defendant may never regain his balance within the legal system. To reduce the threat of perjured testimony, the remedy may need to be pre-trial.[7]

            Courts currently use just such a pre-trial system for expert witnesses, testing their credibility, reliability and reasonableness in a hearing. During these hearings the burden rests on the prosecution. Some argue, however, that these sorts of hearings put the witness on trial. While an expert must back up his credentials, an informant could confront questioning about his criminal past, as well as anything in his life relevant to his credibility.[8] First bullied into testifying, his reward for his civic duty would be airing his dirty laundry in court. This could threaten his trust in and respect for the legal system. Is this really how we want to treat those on whom we rely for justice?

            But, what about those sitting in prison on just this sort of false testimony? Surely this reduces the public's trust in the “system” more than an open vetting process. Some states already require these types of pre-trial hearings.[9] Further, not all witnesses must be subjected to them. Only those receiving government deals would be required to attend. In Illinois, for example, these hearings are limited to “in-custody informants.” Because they are already in prison, the Illinois court concluded that these witnesses have particularly little to lose, and an extraordinary motivation to lie. Therefore, to offer this testimony, the prosecution must prove the witness's reliability pre-trial and by a preponderance of the evidence. Otherwise, it is flatly rejected.[10]

            If due process remains the goal, and informant testimony continues to put innocent people behind bars, Illinois may just be onto something.