Do Judicial Instructions Aid in Distinguishing Between Reliable and Unreliable Jailhouse Informants?

• Date: 01 May 2020
• Published date: 01 May 2020
• DOI: 10.1177/0093854820908628
• Subject Matter: Articles

CRIMINAL JUSTICE AND BEHAVIOR, 2020, Vol. 47, No. 5, May 2020, 582 –600.

DOI: https://doi.org/10.1177/0093854820908628

Article reuse guidelines: sagepub.com/journals-permissions

© 2020 International Association for Correctional and Forensic Psychology

582

DO JUDICIAL INSTRUCTIONS AID IN

DISTINGUISHING BETWEEN RELIABLE AND

UNRELIABLE JAILHOUSE INFORMANTS?

STACY A. WETMORE

Roanoke College

JEFFREY S. NEUSCHATZ

The University of Alabama in Huntsville

MELANIE B. FESSINGER

The City University of New York

John Jay College of Criminal Justice

BRIAN H. BORNSTEIN

University of Nebraska–Lincoln

JONATHAN M. GOLDING

University of Kentucky

Jailhouse informants are a leading cause of wrongful convictions. In an attempt to preempt such miscarriages of justice,

several states (e.g., Connecticut and California) have mandated that judicial instructions be provided to act as a safeguard

against false testimony. This study evaluated the effectiveness of these instructions in helping jurors distinguish between

reliable and unreliable jailhouse informants. Participants read a trial transcript that varied instructions (Standard, Connecticut,

Enhanced) and informant reliability (reliable, unreliable). The results indicated that the instructions had no effect on verdict

decisions. Even though verdicts did not vary, participants rated the unreliable informant as less trustworthy, honest, and

interested in justice than the reliable informant. This is consistent with previous findings that indicate that participants are

aware of the legal prescriptions given in the instructions, but they do not implement them in making decisions. Therefore,

instructions may be an insufficient safeguard.

Keywords: jailhouse informants; secondary confessions; fundamental attribution error; jury instructions; juror decision-

making

Jailhouse informants are witnesses who claim to have gained evidence about an ongoing

case while incarcerated. Their evidence often comes in the form of a secondary confes-

sion, in which they claim to have heard another incarcerated person confess to a crime

(Neuschatz et al., 2008). In addition, their evidence often comes in exchange for an incen-

tive. Incentives can range from seemingly innocuous returns such as extra food or telephone

AUTHORS’ NOTE: The authors would like to thank Margaret Bull-Kovera for her assistance with the

mediation analyses. Correspondence concerning this article should be addressed to Stacy A. Wetmore, Roanoke

College, 221 College Lane, Salem, VA 24153, USA; e-mail: wetmore@roanoke.edu.

908628CJBXXX10.1177/0093854820908628Criminal Justice and BehaviorWetmore et al. / JAILHOUSE INFORMANT INSTRUCTIONS

research-article2020

Wetmore et al. / JAILHOUSE INFORMANT INSTRUCTIONS 583

privileges to larger returns such as shorter sentences or even dropped charges (Bloom, 2003;

Natapoff, 2009). These incentives may be necessary to gather truthful evidence, but they

also provide a strong motivation for jailhouse informants to fabricate evidence for their own

benefit. Experimental studies have demonstrated that incentives increase the likelihood that

individuals will provide false secondary confessions (Swanner & Beike, 2010). In fact, one

of the most notorious jailhouse informants, Leslie Vernon White, went on 60 Minutes and

admitted to fabricating evidence against a dozen or so persons on trial (Bloom, 2002). His

statements such as, “why spend time—just drop a dime,” and “don’t go to the pen—send a

friend,” exemplify the inordinate motivation jailhouse informants have to provide false

evidence (Bloom, 2002).

Unsurprisingly, the Innocence Project lists unreliable jailhouse informant testimony

among the major contributing factors to wrongful convictions (Innocence Project, n.d.).

Moreover, the Center on Wrongful Convictions at Northwestern University School of Law

reported unreliable jailhouse informant testimony as the leading cause of wrongful convic-

tions in capital cases (Warden, 2004). Among the 111 death row exonerations between 1973

and 2004, unreliable jailhouse informant testimony contributed in 45.95% of the cases

(Warden, 2004). Given this, it is unsurprising that some courts have referred to informant

testimony as “inherently unreliable” (e.g., Sivak v. Hardison, 2011), and legal commenta-

tors have expressed concerns about its use over the last several decades (e.g., Bate et al.,

2014; Mehler, 1997; Natapoff, 2009).

Despite these concerns, the U.S. Supreme Court has held that the legal system has ade-

quate safeguards to protect against unreliable informant testimony. In Hoffa v. United States

(1963), the court held that although informant testimony may be unreliable, “[t]he estab-

lished safeguards of the Anglo-American legal system leave the veracity of a witness to be

tested by cross-examination, and the credibility of his testimony to be determined by a prop-

erly instructed jury” (p. 311). Other safeguards include requiring prosecutors to disclose any

incentives informants receive for testifying (Brady v. Maryland, 1963) and allowing defense

attorneys the possibility of introducing expert testimony (State v. Connecticut, 2017). The

growing number of wrongful convictions based on unreliable secondary confessions from

jailhouse informants, however, demonstrates that jurors are persuaded by this type of evi-

dence and that the proposed safeguards may be inadequate at mitigating its impact.

A number of empirical studies have investigated the persuasiveness of a jailhouse infor-

mant, as well as the inadequacy of a number of the proposed safeguards. Several studies

have found that jurors are more likely to find a person on trial guilty when they hear a jail-

house informant testify than when they do not (Maeder & Pica, 2014; Maeder & Yamamoto,

2017; Neuschatz et al., 2008, 2012; Wetmore et al., 2014). In Neuschatz et al. (2008,

Experiment 1), verdict rates revealed the overwhelming power of jailhouse informant testi-

mony: 60% of participants who heard a jailhouse informant testify about a secondary con-

fession in a murder case found a person on trial guilty, whereas only 32% of participants

who heard the same trial without the jailhouse informant found him guilty. In fact, Wetmore

and colleagues (2014) found that secondary confession evidence was equally as persuasive

as primary confession evidence (i.e., an incriminating statement made by the person directly

to the police), the latter of which is often cited as the most compelling form of evidence that

can be introduced against a person on trial (e.g., Colorado v. Connelly, 1986).

Jailhouse informant testimony is compelling to jurors even when a jailhouse informant

has a motivation to fabricate the testimony. Neuschatz et al. (2008), for example, presented