Chapter 8 Informants

• Jurisdiction: United States

Chapter 8 Informants

A. Introduction

There is nothing inherently disagreeable or suspicious about being considered an "informant." Defined simply as "a person who informs or gives information,"¹ every witness interviewed by the police or who testifies in court is subsumed within this term. However, our focus in this chapter is not on disinterested witnesses who supply information, but rather on "incentivized" witnesses: individuals who provide information in expectation of or pursuant to an agreement that they will receive some form of consideration in exchange for their testimony, whose motives consequently may be questionable.² Commonly known pejoratively as "snitches," or "jailhouse informants" if incarcerated,³ such individuals may perceive (correctly) that their testimony will be valued, and rewarded, only if it helps produce an arrest or secure a conviction.

Reliance on information provided by incentivized witnesses, and perhaps especially by jailhouse informants, presents criminal justice officials with a dilemma. As one federal judge has observed, "[c]riminals are likely to say and do almost anything to get what they want, especially when what they want is to get out of trouble with the law."⁴ On the other hand, as distinguished federal jurist Learned Hand once noted: "Courts have countenanced the use of informers from time immemorial; in cases of conspiracy, or in other cases when the crime consists of preparing for another crime, it is usually necessary to rely upon them or upon accomplices because the criminals will almost certainly proceed covertly."⁵ Another court has observed that, "[i]t is an unfortunate reality that 'the government cannot be expected to depend exclusively upon the virtuous in enforcing the law.'"⁶ Whether these countervailing tendencies can be reconciled, and if so, how, is of obvious importance for both promoting justice and guarding against miscarriages of justice.

Through August 1, 2018, the unreliable testimony and statements of incentivized witnesses (jailhouse informants and persons not in custody who provide information when an explicit incentive was available) have contributed to roughly one out of six of the wrongful convictions exposed through DNA evidence (58/354, or 16.4%), including five cases (out of the 20 DNA-based capital exonerations) in which innocent defendants were sentenced to death.⁷ In the more comprehensive list maintained by the National Registry of Exonerations, information provided by jailhouse informants is noted as contributing to convictions in 156 of the 2,253 exoneration cases (6.9%) identified between 1989 and August 1, 2018, including 15.1% of the murder case exonerations (133/880) and 27 cases in which defendants were sentenced to death.⁸ In an earlier study, the Center on Wrongful Convictions concluded that 51 of the first 111 (45.9%) individuals found guilty of capital murder and sentenced to death but subsequently exonerated since the early 1970s were convicted "based in whole or part on the testimony of witnesses with incentives to lie—in the vernacular, snitches.... That makes snitches the leading cause of wrongful convictions in U.S. capital cases...."⁹

It may seem odd that systems of justice countenance witnesses whose testimony is conditioned on the government providing a quid pro quo in the form of a charge or sentence reduction or other consideration. Does bartering for justice risk subverting it? Would we (understandably) not look askance at defense witnesses whose testimony was similarly conditioned on compensation or reward?¹⁰ We begin by presenting case decisions that evoke such fundamental questions. We next consider the prosecution's obligation to disclose promises made to witnesses in exchange for testimony, and whether prosecutors can be liable for failing to monitor the informants on whom they rely when their false or duplicitous testimony contributes to wrongful convictions. We conclude by examining various procedures designed to diminish the risk that unreliable informant testimony will corrupt the truth-seeking process—measures that include pre-trial screening and discovery, corroboration requirements, and special jury instructions.

B. Snitches for Hire: Are Incentives to Testify Bribery? Are Incentives Fundamentally Unfair?

A federal criminal statute, 18 U.S.C. §201, prohibits the "[b]ribery of public officials and witnesses." In particular, 18 U.S.C. §201(c)(2) provides:

Whoever ... directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceeding, before any court ... authorized by the laws of the United States to hear evidence or take testimony ... shall be fined under this title or imprisoned for not more than two years, or both.

Sonya Singleton was charged in a federal indictment with multiple counts of money laundering and conspiracy to distribute cocaine. Allegations centered on her use of Western Union facilities in Wichita, Kansas to wire money to California in exchange for cocaine, which was intended for sale in the Wichita area. One of the government's witnesses at Singleton's trial was an alleged co-conspirator, Napoleon Douglas. As provided in a written plea agreement approved by the government, Douglas's testimony was procured following three promises:

First, the government promised not to prosecute Mr. Douglas for any other violations of the Drug Abuse Prevention and Control Act stemming from his activities currently under investigation, except perjury or related offenses. Second, it promised "to advise the sentencing court, prior to sentencing, of the nature and extent of the cooperation provided" by Mr. Douglas. Third, the government promised "to advise the Mississippi parole board of the nature and extent of the cooperation provided" by Mr. Douglas. Mr. Douglas agreed, "in consideration of the items listed ... [to] testify[] truthfully in federal and/or state court"....¹¹

Singleton filed a pretrial motion to suppress Douglas's testimony, contending that the government's promises made in exchange for his testimony were unlawful under 18 U.S.C. §201(c)(2). The trial judge denied the motion, Douglas testified at Singleton's trial, and she was convicted. On appeal, a three-judge panel of the 10th Circuit Court of Appeals sent shockwaves through the legal community by agreeing with Singleton's argument and reversing her conviction. United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998). The repercussions were short-lived. Acting on its own motion, the 10th Circuit Court of Appeals reconsidered the case en banc and in short order overturned the panel decision, thus restoring approval of the long-observed practice of prosecutors' offering consideration to informants in exchange for their trial testimony. We present portions of the majority, concurring, and dissenting opinions of the court's en banc decision below.

United States v. Singleton 165 F.3d 1297 (10th Cir.) (en banc), cert. denied, 527 U.S. 1024 (1999)

PORFILIO, Circuit Judge.

... Ms. Singleton takes the position that when Mr. Douglas testified after receiving the government's promise of lenient treatment in exchange for his truthful testimony, he became a "paid 'occurrence' witness," and testimony from those of such ilk is contrary to the fundamental precepts of American justice because the payment of something of value would give the witness a strong motivation to lie. She reasons [18 U.S.C.] section 201(c)(2) was enacted to deter that result, and we need only apply plain meaning to the word "whoever" contained in the statute to conclude it must apply broadly and encompass the government and its representatives.

In contrast, the United States argues to allow section 201(c)(2) to sweep so broadly would not only be a radical departure from the ingrained legal culture of our criminal justice system but would also result in criminalizing historic practice and established law. The government maintains Congress did not intend to hinder the sovereign's authority to prosecute violations against the United States in this fashion....

As correctly argued by Ms. Singleton, "whoever" is a broad term which by its ordinary definition would exclude no one. Indeed, if one were to take the word at face value, defendant's argument becomes colorable, at least. However, the defendant's approach, while facially logical, ignores a crucial point that must be considered in any attempt to apply the statute to the issues of this case. She argues the breadth of the word "'whoever' includes within its scope the assistant United States attorney who offered Douglas something of value in exchange for his testimony." To begin the parsing of the statute with this assumption, however, ignores a fundamental fact: the capacity in which the government's lawyer appears in the courts.

The prosecutor, functioning within the scope of his or her office, is not simply a lawyer advocating the government's perspective of the case. Indeed, the prosecutor's function is far more significant. Only officers of the Department of Justice or the United States Attorney can represent the United States in the prosecution of a criminal case. Indeed, a federal court cannot even assert jurisdiction over a criminal case unless it is filed and prosecuted by the United States Attorney or a properly appointed assistant. Therefore, the government's sovereign authority to prosecute and conduct a prosecution is vested solely in the United States Attorney and his or her properly appointed assistants.... We thus infer in criminal cases that an Assistant United States Attorney, acting within the scope of authority conferred upon that office, is the alter ego of the United States exercising its sovereign power of prosecution. Hence, in the attempt to apply section 201(c)(2), the United States and the Assistant United States Attorney cannot be...