WRONGFUL CONVICTIONS CLASS
Reading Assignments for
Snitches and Informers
I. BACKGROUND READING
As you know from Actual Innocence, almost 20% of the identified wrongful conviction cases involved "snitch" testimony. This testimony generally involves an incarcerated individual testifying that he heard or received a statement from the defendant in which that defendant confessed to the crime. As we know from cases like Dennis Fritz, often these statements are total fabrications, yet they are frequently used at trial. What motivates snitches to provide this information? What protections are there to assure reliability? What, if any, legal limits are there to admission of snitch testimony?
For a sense of the nature of the problem and the effect of snitch testimony on wrongful convictions, read chapter 6 in Actual Innocence. Also take a look at the following sites:
Rob Warden, The Snitch System: How Incentivised Witnesses Put 38 Innocent Americans on Death Row (Research Report)
SNITCH: PBS Documentary
Chicago Tribune article: The Jailhouse Informant
With all these concerns about the reliability of snitch testimony, why is it that prosecutors appear so willing to use this kind of testimony? Why do prosecutors continue to believe cooperators, who we now know are often less than completely truthful? Based on a study of federal prosecutors, Professor Ellen Yaroshefsky provides insight into this issue. Take a look at Yaroshefsky, Cooperation With Federal Prosecutors: Experiences of Truth Telling and Embellishment, 68 Fordham L. Rev. 917 (1999), pages 930 to 964 (available on Westlaw and Lexis).
For an interesting look at the history of the use of snitches, the inadequacy of existing restraints on their use and proposals for the future, read George C. Harris, Testimony for Sale: The Law and Ethics of Snitches and Experts, 28 Pepperdine L. Rev. 1, 12-34 [IIIA], 49-58 [B(2)(a)] and 61-69 [C1] (2000). For a very practical treatment of the issue, see generally Hon Stephen Trott, Words of Warning for Prosecutors Using Criminals as Witnesses, 47 Hastings L. J. 1381 (1996) (available on Westlaw and Lexis).
II. THE LAW
Should prosecutors be allowed to "buy" testimony from informants by giving them money, concessions in charging or sentencing, or other benefits? Is this fair in light of the restrictions on defendants paying witnesses to testify? Although many believed these questions to have been well settled, a panel decision of the Tenth Circuit issued an opinion preventing government use of testifying snitches in United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998). For an interesting view of that case, see http://www.pbs.org/wgbh/pages/frontline/shows/snitch/end/. Not surprisingly, that decision was quickly vacated pending rehearing en banc by the Tenth Circuit. That Court fully addressed the issues involved. Read the en banc Singleton opinion (the majority, concurrences and dissents are separately posted and linked together).
Are there any constitutional limitations on the use of snitch testimony? Is the government free to send in cooperators to obtain information from incarcerated defendants? Can the government use whatever information is offered by snitches as long as the government did not initiate the contact? What do you think after reading these excerpts from Kuhlmann v. Wilson? Are you convinced by the Court's analysis?
What kind of limits can and should be put on the use of "snitch" testimony? Who has the power to impose them? For an interesting take on the problem, see the Motion to Preclude Creation of Snitch Testimony prepared by the Louisiana Indigent Defense Assistance Board.