Friday, September 26, 2008

Why should snitches' testimony get extra scrutiny?

One of the CCA "Integrity Unit" members, Texas House Corrections Chairman Jerry Madden, posed a question to Justice Project President John Terzano regarding snitches during his presentation yesterday that inspired me to (perhaps rudely?) interject from the audience a response to his concerns. (I was attending as part of my consulting gig with the Innocence Project of Texas.)

Terzano was arguing that informants whose testimony will be compensated by money, reduced charges or more lenient sentences for other crimes they've committed should be subjected to a pre-trial reliability hearing in which a judge, outside the purview of the jury, makes an independent determination whether the informant is a reliable source.

Regular readers know this is an idea that I've long regarded highly since first hearing about the concept from Loyola (CA) law prof Alexandra Natapoff, a former federal public defender turned law professor and a deep thinker on snitching-related topics. I know of many cases where such a precaution might have prevented a lot of heartache.

Madden asked whether the courts subject any other witnesses to this sort of pre-vetting and why shouldn't they just rely on the jury to determine if the witness is credibile? Terzano replied that informants were a special case because they had special incentives to lie, but I could tell by the look on the Chairman's face he was dissatisfied with the response.

So I raised my hand like a schoolkid from my seat in the peanut gallery (the event was held in the CCA court room), and, receiving the barest acknowledgment, burst in to insist that the more precise analogy would compare snitches to paid, expert witnesses, for whom the courts have established the Daubert standard to determine whether jurors can hear their testimony. Though it's more notoriously true in civil court, because experts are paid by advocates aiming for a particular outcome that's in dispute, frequently opposing sides of a legal matter can find qualified experts willing to espouse entirely opposing views if they're both paid by people with conflicting agendas (in this case conviction vs. acquittal).

Similarly, I said, confidential informants should be considered compensated witnesses just like experts who're evaluated based on the Daubert standard. Even when snitches aren't compensated directly with cash, their reduced or eliminated culpability for other crimes constitutes compensation more valuable, in a real sense, than anything money can buy! After all, what is the price for human freedom?

In an era when so-called "tort reform" has been a cause celebre in Texas politics for more than a decade, the idea of pay-per experts with college degrees, suits and briefcases willing to testify to anything for a buck has almost become a cliche. How much more willing would some criminal be to lie or manipulate evidence when their "compensation" for doing so is their freedom instead of just a 3-figure hourly fee?

MORE: Commenter Don Dixon asked "isn't this what cross-examination is for?" I emailed his question to Prof. Natapoff after replying myself, curious about her answer. She replied, in relevant part:
1. The large number of exonerations in snitch cases suggest that cross examination doesn't do a very good job, since juries apparently believe lying snitch witnesses anyway even when they are cross examined. Professor George Harris [George C. Harris, Testimony for Sale : The Law and Ethics of Snitches and Experts, 28 Pepp. L. Rev. 1 (2000)] points out that while cross may be effective for regular witnesses, snitches whose own lives are on the line may be particularly difficult witnesses to budge from their stories.

2. In federal court, the Jencks Act delays the government production of witness statements until after the witness has testified, meaning that the defense won't even get to see the snitch's prior statements until after he takes the stand - it's hard to cross effectively under those circumstances. See Ellen Podgor, Criminal Discovery of Jencks Witness Statements: Timing Makes a Difference, 15 Georgia St. U.L. Rev. 651 (1999).

3. Professor Jeff Neuschatz's study [Jeffrey S. Neuschatz et al., The Effects of Accomplice Witnesses and Jailhouse Informants on Jury Decision Making, 32 Law & Hum. Behav. (2008)] found that mock jurors didn't even care whether the snitch was compensated - they convicted at the same rates whether they were told of the deal or not. In other words, jurors may be impervious to the things that we think will cause them to disbelieve snitches.

4. By the way, the Supreme Court in the Hoffa case clearly believed that cross examination would be effective against informants and prevent fundamental unfairness to defendants. It's just not so clear that the Court was right.

20 comments:

rage said...

While it can't hurt, I'm not sure pre-vetting would do any good.

Can you imagine a judge in Collin County prevetting a snitch?

Judge: "Did you really see it?"

Snitch: "Yep."

Judge: "Sounds good to me."

This would be repeated in county after county. Smith, Harris, Travis, Dallas, all would have 100% approval rates, only to get rubber-stamped by the courts of appeals.

What standards or safeguards could be enacted with the requirement to vet?

Don Dickson said...

Forgive me if I'm missing something, but isn't this what cross-examination is for?

Gritsforbreakfast said...

Don, the answer is, "Sure, but waiting until then results in too many convictions of innocent people."

Why subject the jury to a he-said she-said if the informant is not reliable? Personally I think the law should require corroboration for ALL snitch testimony, not just in drug buys. Until that day, it's too prejudicial to just allow uncorroborated, self-aggrandizing flotsam into evidence then place the burden on the defense to rebut, particularly for witnesses who have a strong incentive to lie.

Rage, as you know IANAL so your question's a little beyond my pay-grade. See Natapoff's Sample Motion for Snitch Reliability Hearing" (doc) and see if it doesn't answer some of your questions.

Arizona Attorney said...

I agree that snitch testimony should require corroboration.

It doesn't make much sense otherwise.

Anonymous said...

I don't always agree with you but I applaud you for speaking up at a public forum.

Gritsforbreakfast said...

Don, see the update at the bottom of the post for a further response to your question.

Bumie said...

The 24 hour news stations are way out in front on of the court when it comes to "experts" spouting self-aggrandizing flotsam.

The stations have discovered that its a lot cheaper to fill the hours with expert opinions than it is to actually send real news hound journalists out to sniff out good stories. The thing about airing opinions instead of news is it makes for better TV if you also show a counter opinion. They have to come up with somebody to offer a counter opinion so they can continue to wear the "fair and balanced" hat.

Anyway, the discovery here is that the audience does not seem to care about the plausibility of the competing arguments. As long as there is some conflict, people will call it a tie and use their own prejudice as the tie-breaker.

Jerri Lynn Ward said...

I am an orthodox Christian (and secondly an attorney)with whom many Grits supporters would disagree on many issues. I find myself in complete agreement with Grits on this issue because the testimony of "snitches" is COMPLETELY at odds with the requirements of proof under Biblical Law. There is NO way that a person could be convicted under Biblical Law by testimony from a snitch.

In my opinion that the testimony of a snitch should not only be scrutinized under a Daubert standard, it should totally be disallowed.

Anonymous said...

Jurys are clearly merely dupes. We can not allow them to judge the credibility of this type of witness.

Come to think of it, jurys have made several darn mistakes. Perhaps too many eh? Only us enlightened ones can really judge whats credible.

Let's go try something else.

123txpublicdefender123 said...

And did he seem convinced, or, at least, interested in your response, Scott?

Jurors do seem predisposed to believe snitches. This makes no sense to me considering that 9 times out of 10, I can't imagine jurors believing these same people if and when they testified in their own trials, and in each circumstance, they have the exact same incentive to lie.

Hmmmm . . . I think I might be stumbling on a good closing argument for myself here.

I share rage's concern, though, that I doubt judges would do much in screening their testimony. What factors are they supposed to consider? Whether the judge subjectively believes him or her? I guess I would take anything over what we have now, but I just wouldn't put much hope in this helping much.

Gritsforbreakfast said...

rage and 123, regarding a standard for a decision, Natapoff's motion argues a (federal) judge's standards at a reliability hearing should be decided thusly:

"Federal Rule of Evidence 403 provides that “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ..." And, Federal Rule of Evidence 701, limits lay witness testimony to testimony that is “helpful” to the trier of fact."

I'd encourage you to read the whole thing (the motion is about 11 pages), but here's more from her argument:

"At least two courts have ordered reliability hearings whenever incarcerated informants (“jailhouse snitches”) are proposed witnesses. See Dodd v. State, 993 P.2d 778, 784 (Ok. Ct. of Crim. App. Jan. 6, 2000) (Strubhar, J., concurring) (approving lower court imposition of “reliability hearing” comparable to Daubert hearing); D’Agostino v. State, 107 Nev. 1001, 823 P.2d 283 (Nev. 1992) (holding that before “jailhouse incrimination” testimony is admissible the “trial judge [must] first determine[] that the details of the admissions supply a sufficient indicia of reliability”). The Illinois Governor’s Commission on Capital Punishment has likewise recommended reliability hearings whenever incarcerated informants are offered as witnesses."

Were you as surprised as me to see that they're required in Oklahoma state courts?! She also argues that:

"The law’s treatment of expert witnesses further supports the holding of a reliability hearing in this instance. In Daubert v. Merrell Dow Pharmceuticals Inc., 509 U.S. 579 (1993), the Supreme Court determined the need for a special mechanism to evaluate the reliability of expert witnesses because experts pose thorny problems of cross-examination and persuasion. Experts, for example, rely on specialized information that is not directly available to the jury. Daubert, 509 U.S. at 592. The court held that the concerns underlying Rule 403 are preeminent because expert witnesses can have such a potent effect on juries"

(If I didn't mention it, Sasha Natapoff is one of my intellectual heroes out of the law professor crowd.)

Finally, regarding the value of a pretrial evidentiary hearing, it does give the defense a chance to hear and vet what the snitch will say before trial with time to investigate instead of forcing defense attorneys to react in the heat of the moment to some revelatory bomb that could be a compensated lie. Again from Natapoff's (federal) motion:

"Cross-examination will be further hampered because the defense lacks pre-trial access to the cooperators. At this stage in the proceedings, the defense has not yet seen the cooperators’ pleas agreements. The cooperators, on the other hand, have had multiple opportunities to hone their version of events in preparation for court, both in the state proceedings and in connection with this federal case. This combination of one-sided access and government preparation will render these witnesses overly prepared and difficult to examine at trial."

123, Madden acknowledged "That's true" when I pointed out experts were pre-vetted, and seemed to frown and leaned back to think to himself when I finished, was the only reaction I got. Of course, as you can tell, it's Prof. Natapoff from whom I ripped off that particular insight, but it seemed to partially assuage the uniqueness concern.

FleaStiff said...

Well, lets cut right to the chase!
Judges ain't fooled by jailhouse informants. More importantly, neither are prosecutors who offer the witness and the ever so convenient testimony.

Let us compare jailhouse informants to a police officer's "dropsy testimony" from the early sixties. Routine testimony from cop "as I approached the defendant he took an object from his pocket and flung it away from him. I recognized the object as a bindle, a type of packaging often used for the street level sale of drugs. Since the bindle was in plain sight, I determined that I had sufficient probable cause to stop the suspect for a search of his person and an arrest.

Now no judge really thought that an experienced drug user or drug dealer would throw it away since the drug dealers are not stupid. No judge really thought that the cop was able to keep one eye on that bindle and pick it up amidst all the other junk on a city street. The testimony however was routine accepted.

Jailhouse snitches know the ropes: don't ask for a specific deal, tell the DA to arrange some mickey mouse hearing for yourself so you have a reason to be in that prison transport van, etc. Real criminals don't go spouting off in jail cells or transport vans. And everyone knows that! Yes, everyone! Even those dumb jurors!
They know the conversation never took place, but jurors say 'where there is smoke, there is fire, so lets see some smoke before we vote guilty'. The prosecutor provides that smoke. Its a ritual. Its not much different than her Saturday night ritual of dragging some jerk out of a singles bar and taking him to her place: they start off on the couch and THEN transition to the bed. Its part of the reputation-saving ritual.

todd said...

"There is NO way that a person could be convicted under Biblical Law by testimony from a snitch."

How does this matter since we are a secular nation? (thank goodness)

Anonymous said...

Fleastuff wrote:

"Now no judge really thought that an experienced drug user or drug dealer would throw it away since the drug dealers are not stupid."

Really? That is an interesting statement and totally wrong. I am a cop and have had people dump dope right in front of me multiple times. Dope dealers are actually pretty stupid or else they would have real jobs.

Of course since I am a cop you probably just think I'm lying right? That is much more likely than a dumb criminal.

FleaStiff said...

We are painting with very broad brushes here.

>have had people dump dope right in front of me multiple times
I didn't say it never happened and such dumping probably takes place after your interaction has begun.
>Dope dealers are actually pretty stupid
Social class, education, luck ... one schoolyard bully grows up to go on the cops, another schoolyard bully grows up to be a criminal, another grows up to be the prosecutor. Many cops admit that if they were unemployed and unemployable teens in the housing projects, they would be the ones out selling drugs too instead of being the prohibition agents who engage in price support and anti-competitive practices on behalf of the dealers.

>since I am a cop you probably just think I'm lying right?
No. Most cops don't lie because they don't have to lie. The truth is often enough to get a conviction. When its not enough, cops are often willing to lie since they pretty much have the same values as the criminals who tend to lie about everything. Its no big deal. If swearing an oath really meant anything the Bible would fly out of the hand of most of the people taking the stand.

Gritsforbreakfast said...

Not to get in the middle of the dispute between our cop friend and Fleastuff, but I've thought a lot about the assumptions behind this question: "Dope dealers are actually pretty stupid or else they would have real jobs."

I think there are different classes of "dope dealers." The retailers who fill up jails, prisons and make up most arrest, typically earn little more than minimum wage, if that, and are the equivalent of McDonalds counter-staff. They're expendable because of the business model. The book Freakonomics did a good job of describing this phenomenon, including the fact that a large percentage of retail-level drug dealers still live with their mothers.

OTOH, the best high-level drug dealers are smarter than the best top cops. Clearly. Results speak for themselves; there can be little question who's "winning" the drug war.

Todd said...

"OTOH, the best high-level drug dealers are smarter than the best top cops. Clearly. Results speak for themselves; there can be little question who's "winning" the drug war."

And here we have the contradiction. You are correct that there are some very smart dealers. These are usually the top-level guys. They stay away from high risk transactions. They conduct counter-surveillance, only deal with people they know, and switch out phones once a month.

Because of this, they are very hard to catch. This is exactly the type of criminals that require the police to use snitches to catch. Cops typically catch people on the bottom rungs and use them to work their way up to the top levels.

ysfczl said...

This is exactly the type of criminals that require the police to use snitches to catch. Cops typically catch people on the bottom rungs and use them to work their way up to the top levels.

No. They catch other people on the bottom rungs. The retail level dealers don't even know where the guy above them is getting the dope. You think this is an accident? The snitch's leads will be best for others on his same level and lower levels... and his customers.

FleaStiff said...

Cops and DAs often advance their careers via drug cases. If its a matter of flipping lower level dealers to get higher level dealers, fine. Often however low level dealers only know other low level dealers, but thats okay, it goes into the "stats" as a drug case, even if the low level dealer has to manufacture the case it still has the same value to the DA. From time to time a kingpin will walk but the underlings will go to jail. After all, the kingpin has the better lawyers, better bargaining chips and knows how to make a deal.

Anonymous said...

I defintely think there should be scrutiny and high standards to meet before a snitch's testimony is allowed (if at all).Where there is a payoff, and I don't care what rung of the ladder they're on, that means trouble for the defendant. We already know eye-witness ID's are notoriously wrong in alot of cases, some not sure but accepted as such, or even recanted, so why should we believe a snitch? What happened to ACTUAL evidence- and I don't mean bogus. There is so much INjustice in "justice" that it is no wonder people in law enforcement & criminal justice system lack credibility and respect from Joe Public.