Thursday, October 30, 2008

Corroborating informant testimony, reporting crimes by snitches among ACLU recommendations

On Monday, ACLU's Texas affiliate and the group's Drug Law Reform Project held a press conference to release a briefing paper (pdf) recommending changes to how testimony from confidential informants is gathered and used. While I haven't seen any press coverage, many of their proposals, for long-time readers, will have a familiar ring:
1. Require any warrant based on information from a confidential informant to include information on the informant.

2. Corroborate information from a confidential informant used to acquire a warrant.

3. Provide information on any confidential informant to all parties prior to plea bargaining.

4. Require a reliability hearing for informants prior to the introduction of informant testimony.

5. Corroborate information from incarcerated informants.

6. Require each law enforcement agency maintain an informant registry.

7. Establish performance measures that track law enforcement effectiveness.

8. Report crime committed by confidential informants.

9. Establish grants to improve law enforcement training relating to gathering informant testimony.

10. Require a signed statement from confidential informants prior to use of informant-derived evidence at trial.
According to the briefing paper, not only can uncorroborated informant testimony lead to false convictions of innocent people, "There is an incentive for law enforcement to ignore illegal activity by informants because addressing the criminal activity would stop or impair a criminal investigation."

12 comments:

Anonymous said...

A very bad situation unraveling in Ohio:

http://www.talkleft.com/story/2008/9/28/125522/819

Lucas and Bray exemplify how the Agent; the Informant; and the prosecutor can work together albeit crookedly to convict.

Nothing would have happened to anyone had Bray not later admitted he lied earlier.

The so what on these is that even with the best safeguards rules for Informants alone is not enough.

In my 25 years of law enforcement I have vetted hundreds of informants and I knew when they were lying and I knew when they were telling the truth.

It's not rocket science. More emphasis needs to be put on the Agent or Officer using the informant because that's where the lion's share of the problem exists.

In the most celebrated cases of Informants that later admitted lying, the Agents and Officers knew it. That's not just an informant problem. Lucas and Bray essentially corroborated lies.

Anonymous said...

I believe that some reform is necessary with informant testimony but the ACLU recommendations go too far. Any reform that leads to even the casual revealing of the informant will have a chilling effect. The informer's identity has to be protected or else people won't become informants any more. If I have a client who has to become an informant to save himself, then I definitely do not want there to be a risk to his safety because of his role. I believe corroboration and keeping files for a registry is a good idea.

Gritsforbreakfast said...

If your client becomes an informant to save himself from prosecution, 11:37, shouldn't the defendant against whom your client, the snitch, is testifying have a right to confront their accuser?

A possible "chilling effect" on the activities of jailhouse rats does not, it seems to me, override the need to more thoroughly vet informant testimony including the informants themselves. Your client caused the "risk to his safety" by choosing to engage in criminal behavior in the first place, but that self-created risk shouldn't reduce the rights of other defendants, IMO.

Anonymous said...

I think we should put informants on the internet, picture, address, employer, shoe size, email address, everything. And make sure Google maps it.

That way we can track them to protect the community.

Anonymous said...

Put Informants on the "Internet"

Go to Who's A Rat.com Been there for years

Anonymous said...

Poor Scott did someone snitch on you. You defend registered sex offenders and disagree with information being released about where they are employed. But lets reveal confidential information on informants and undercover officers. Not all informants are criminals or have been charged with a crime. I agree that informant information needs corboration and there needs to be a record of the informants that are being used. Which is what DPS Narcotics does and the now defunct task forces also did.

Gritsforbreakfast said...

I think the exact same information should be public about sex offenders as every other person who's convicted, 9:14, But when evidence shows an ostracization policy (registration, residency restrictions, etc.) makes people more likely to recidivate, personally I prefer the public policy option that minimizes the number of sex crimes and creates fewer victims overall. Why you'd knowingly choose a policy that increases the number of sex crimes just to score political points is between you and your conscience.

As for informants, if they weren't frequently a source of convicting innocent people (not to mention, as the first commenter said, covering up for police corruption), you might have a point. But they are. So you don't. (See this GAO report [pdf] which found that "corruption was more likely to result from day-to-day contacts between police officers and informants.")

Finally, I'm glad you agree informant testimony needs corroboration. Do you agree with any of the other suggestions?

Anonymous said...

I agree with you completely that all informant information needs corboration. It states in the Texas CCP that informants need corboration. Unfortunately small local law enforcement agencies have little or no narcotics training or no training at all on dealing with confidential informants therefore unfortunately no independent corboration is done. I know you think narcotics task forces were the scourge of humanity but believe it or not some of these officers had extensive training and conducted professional investigations. Not all were Tom Coleman's. As for my thought on all informants not being criminals or trying to make a deal to get out of a criminal charge please address that. There are citizen informants that give info. and they need the protection of anonominity.

Gritsforbreakfast said...

First, private citizens who give information are not "informants," they are witnesses.

However if their testimony is going to be used as an excuse for the government to deprive someone's liberty, the accused has a right to face their accuser, period. Anonymity is not an option. Google around on the "Crawford" case and the confrontation clause for more on why.

Finally, I did not ever "think narcotics task forces were the scourge of humanity." In fact, at a family funeral in Lubbock this week, I spoke to a cousin I'd not seen in a while who worked for one of the task forces when their funding got cut and he lost his job. I don't believe he or all task force officers were a scourge, by any means, but I do think a) they tolerated many bad cops among their midst (an assertion with which my cousin agreed) and b) focused on penny ante enforcement of a type that's unhelpful and counterproductive. It was just the wrong way to spend the money. I know some former task force officers took it personally and thought task force opponents were demonizing them by pointing out various scandals (almost all of which stemmed from similar patterns of negligence and lack of oversight). But to me this was always about a policy decision - is this the best way to spend scarce grant money to maximize public safety? I just didn't believe so and you obviously disagreed. That doesn't mean I think you're a bad person.

Anonymous said...

Yes there are citizen informants. People who would like to remain anonymous and not be put on the stand as a witness because they fear retaliation from drug dealing thugs that live in their community. When these citizens give confidential info. this information also needs to be corborated using several investigative techniques before any action is taken by the investigating agency. What I am saying is that local law enforcement does not always have enough training and most of the time they don't even care that rights are being violated. I agree with you that the solution to the drug problem needs to be facilitated through rehab. as well as education. But drug enforcement also plays a role in the solution. Some of these people would never seek treatment if they were not mandated to do so by the Court. Drug Court's are in my opinion a great thing. It seems that you did take great delight in all task forces being shut down. I remember one of your blogs stating to hug a task force officer because they would no longer be employed. That was cold hearted. There were many honorable men and women that worked for task forces and as you stated there were plenty of bad apples. Inseatd of trashing them all the good ones should have remained open.

Gritsforbreakfast said...

8:17, what happened in Tulia and Hearne was some "cold-hearted" stuff, too, but I notice you're not as agitated about that.

The task force officers who frequented this blog during the period their funding was under fire always gave as good as they got and accused me of everything under the sun during the fight to eliminate their funding. The problem is the entire model was unsound, it wasn't just that there were a few bad apples.

I can't believe you're still agitated about that "hug a task force officer" wisecrack from 2.5 years ago. As mentioned, my own cousin lost his job when that happened and he didn't take it poorly. He, like most of the officers who were worth a damn, just went back to work for his parent agency. For the others, lots of law enforcement agencies were and are hiring. But the biggest positive was that quite a few gypsy cop types who probably shouldn't have been in law enforcement in the first place ended up going into other jobs. For that, everyone's better off.

As for "citizen informants" I'm especially interested in the nexus of events implied when you say:

"People who would like to remain anonymous and not be put on the stand as a witness because they fear retaliation from drug dealing thugs that live in their community. When these citizens give confidential info. this information also needs to be corroborated using several investigative techniques before any action is taken by the investigating agency."

What that really means is you want to commit a de facto Brady violation by concealing from the defense the existence of a "citizen informant," i.e., "witness," and therefore deprive the defense of the opportunity to investigate, cross-examine, search for alternative motives, or otherwise probe into what else the witness might know besides the tiny part investigators hung their hat on. I'm not a a lawyer, but that to me seems to be the implication of why you think that information should be concealed - to get around Brady. Especially after the Crawford case, though, that argument doesn't carry a lot of weight in the face of the defendant's right to face their accuser.

BTW, one thing we haven't talked about that I've wished got more play ever since the whole "stop snitching" meme first came out: The states including Texas WOEFULLY underspend on witness protection services once a snitch's identity is exposed and there IS a threat. Whether or not these other reforms are enacted, I think witness protection needs to be the subject of a major upgrade and provided resources to help in more cases, particularly in those involving transnational drug gangs, where killing witnesses is a serious and immediate threat. However, I see no real constituency pushing for more witness protection monies, and to my knowledge it's not high on any legislators' wish list.

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