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.