Use of Jailhouse Informants In Criminal Cases
While in jail, inmates will chat with one another about their criminal cases. Sometimes, an inmate will confess his or her crime. But in other cases, an inmate can lie about what they have heard other prisoners say.
An inmate may testify for the prosecution based on what he or she has heard while incarcerated. Called jailhouse informants, and sometimes called “snitches,” these inmates usually co-operate with the prosecution in exchange for sentence reductions or other benefits.
What is a Jailhouse Informant?
A jailhouse informant is an inmate who co-operates with the District Attorney in the prosecution against another person. Using informants offers benefits to law enforcement, as many times there is no other way to get inside information about a defendant’s crime. This may help hold those accountable for their crimes who would otherwise escape prosecution.
Oftentimes, informants receive an incentive or a reward for their co-operation. This can include:
- Reduced sentences on pending charges or already existing sentences.
- Special inmate privileges, such as cell assignments, programming, or commissary.
- Reduced charges in pending criminal cases.
- Monetary payments to the inmate or his/her family.
- Other assistance to family.
Are Informants Reliable?
Law enforcement will make its best effort to determine whether informants are telling the truth. This usually is accomplished by corroborating information that the informant could have only learned from the defendant.
However, given the incentives offered to informants, there is often a question of whether the information they give is reliable. According to the Innocence Project, informants with incentives to testify were used in 15% of wrongful convictions that were overturned through DNA testing. Jailhouse informants have played a role in 156 proven wrongful convictions in the U.S., according to the National Registry of Exonerations. And a report published by the Center on Wrongful Convictions in 2004 found that over 45 percent of all wrongful capital convictions involved use of informants, and is the leading cause of wrongful convictions in death penalty cases.
One county in California is currently being investigated for its unlawful use of jailhouse informants. Law enforcement in Orange County failed to disclose their use of informants to defendants and to the courts, with some officers even perjuring themselves as to the practice. Several cases, including homicides, have been undermined due to such unconstitutional practices. And the ACLU has filed a lawsuit, while the federal government has also initiated an investigation.
Safety Measures When Using Informants
At a minimum, the prosecution should provide notice to a defendant that it will use jailhouse informant testimony. This notice should include the criminal history of the informant, the incentives provided to him/her, and any other information bearing on the informant’s credibility.
Prosecutors should also be required to track the use of jailhouse informants. It would bear on an individual’s reliability and credibility if he/she had testified as an informant 20 times previously, versus only for that individual case.
Finally, there should be an instruction to the jurors regarding the use of jailhouse informants. Jurors should be instructed to consider benefits offered or provided to them, their criminal history, and their previous jailhouse informant activity.
References:
- Alexandra Natapoff, “The Shadowy World of Jailhouse Informants: Explained,” The Appeal (Jul. 11, 2018). Available at: https://theappeal.org/the-shadowy-world-of-jailhouse-informants-an-explainer/ (last accessed Apr. 30, 2019).
- The Innocence Project, “Safeguarding Against Unreliable Jailhouse Informant Testimony.” Available at: https://www.innocenceproject.org/causes/incentivized-informants/ (last accessed Apr. 30, 2019).
- Massiah v. United States, 377 U.S. 201 (1964).
- Editorial Board, “Where is Xavier Becerra on the Orange County jail snitch probe?,” The Los Angeles Times (Apr. 27, 2019). Available at: https://www.latimes.com/opinion/editorials/la-ed-jail-snitch-becerra-20190427-story.html (last accessed Apr. 30, 2019).