I'll make you a deal: how repeat informants are corrupting the criminal justice system and what to do about it.

• Author: Dodds, Emily Jane

TABLE OF CONTENTS INTRODUCTION I. THE BRADY RULE AND THE PROSECUTION'S EXISTING OBLIGATIONS WITH RESPECT TO JAILHOUSE INFORMANTS A. Evolution of the Brady Rule B. Prosecution's Existing Obligations Under Brady II. THE TROUBLE WITH JAILHOUSE INFORMANTS A. Prevalence of Repeat Players B. Proposed Reforms III. INFORMANT TESTIMONIAL HISTORIES AND THE BRADY ELEMENTS A. Exculpatory or Impeaching Information B. That Is Material to Guilt or Innocence 1. Inadequacy of the Current Definition of Material 2. Proposed Definition of Material a. Justice Marshall's Bagley Dissent b. In Support of Expanded Materiality c. Proposal by the American College of Trial Lawyers IV. PRECEDENT SUPPORTING AN "ALL RELEVANT EVIDENCE" STANDARD CONCLUSION INTRODUCTION

The American criminal justice system prides itself as being based on fundamental fairness. Although adversarial by nature, the system includes protections and practices intended to even the playing field between prosecutor and defendant, including such constitutional safeguards as the presumption of innocence (1) and proof beyond a reasonable doubt. (2) The Founders' grave concern with protecting the accused against abuses by the government can be seen in the very structure of the Bill of Rights, in which four of the ten amendments are devoted to guaranteeing the criminally accused fair process and proceedings. (3) In 1963, the Supreme Court pronounced another constitutional tenet designed to equalize opportunity between prosecutor and defendant. In the landmark case of Brady v. Maryland, the Court found that criminal defendants have a due process right to receive materially exculpatory evidence in the prosecution's possession. (4) In its opinion, the Court ardently invoked the principles of fairness and justice, (5) and the Brady Court's directive seems clear: If the prosecution has evidence that is material to the defendant's innocence, the prosecution, in the interest of fairness, must give it to the defendant.

In practice, however, application of the rule has not been easy, especially as it relates to jailhouse informants. A jailhouse informant is '"an inmate who is either asked by the government to report any incriminating evidence shared with the inmate by another inmate or who comes forward on his or her own with such information,'" usually in exchange for some type of bargain or benefit from the government. (6) These benefits range from the more dramatic sentencing reductions, dismissals of charges, or recommendations for sentencing leniency, (7) to smaller rewards such as cash or cigarettes. (8) The law is settled that if a prosecutor grants such a benefit in exchange for "helpful" testimony in a given case, the benefit must be disclosed under Brady as materially exculpatory evidence, because of the possible negative impact it may have on the informant's motivation to testify truthfully. (9) The prosecution, however, is not under any Brady obligation to disclose whether the informant has made a habit of proffering evidence against other inmates or whether the government has given him benefits for his testimony in the past; that is, prosecutors have no obligation to disclose an informant's "testimonial history."

Although this type of evidence seems particularly exculpatory--after all, among the most questionable testimony is that of an informant who has learned that turning in others means gain for himself (10)--Brady's progeny and a restricted materiality standard have hamstrung its discoverability. (11) This Note argues that an informant's testimonial history, because it constitutes impeaching and potentially exculpatory evidence, should be made a part of mandatory Brady disclosures through a broadening of the rule's materiality standard, now focused on a post-conviction-type review of the outcome, to one that would reach all exculpatory evidence tending to negate guilt. Part I outlines the evolution of the Brady rule and the prosecution's existing obligations with regard to jailhouse informants. Part II addresses the problem of repeat informants and the dangers they pose to the administration of genuine justice. Part III analyzes the exculpatory and impeachment value of an informant's testimonial history, and its inclusion under the current and proposed materiality standards. Part IV examines case law supporting an expanded materiality standard, its relationship to jailhouse informant testimony, and recent commentary advocating the same.

Jailhouse informant testimony poses a particular danger to the original promise of Brady. Ideally, prosecutors would use informant information as a way to gather important testimony against factually guilty defendants offered by individuals in a unique position to acquire such information. The introduction of benefits in exchange for testimony useful to the prosecution corrupts the process, however, by encouraging those with little to lose to fabricate damaging testimony in order to reap the government's rewards. (12) And the more that an informant "cashes in" on the system, the more doubtful the veracity of that informant's testimony becomes. (13) Broadening the materiality standard to include all evidence that tends to place the defendant's guilt into doubt would certainly promote the mandatory disclosure of the testimonial history of a repeat informant, by its very nature suspicious. This measure is vital to ensuring that criminal defendants are afforded access not only to evidence suggesting their innocence, but also to the benefits of a fair and just trial lauded in Brady and in the American criminal justice system.

1. THE BRADY RULE AND THE PROSECUTION'S EXISTING OBLIGATIONS WITH RESPECT TO JAILHOUSE INFORMANTS

   1. Evolution of the Brady Rule

      The Supreme Court's decision in Brady v. Maryland was neither an unprecedented nor sudden pronouncement. Even before Brady was decided, the Court had already issued an opinion recognizing the suspicious nature of jailhouse informant testimony and the great need for prosecutorial disclosure of information that would illuminate an informant's potential motivation for testifying. (14) In 1959, the Court in Napue v. Illinois found reversible error in a case in which a prosecutor permitted his lead witness, a jailhouse informant, to testify falsely that he had not received any bargains in exchange for his testimony, when in fact the prosecution had offered to recommend a reduced sentence. (15)

      Writing for the Court, then-Chief Justice Warren stated that "[t]he jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend." (16) At the time of Napue, the Court seemed acutely aware of the danger that a jailhouse informant might deliberately craft false testimony for the very purpose of obtaining the prosecution's good graces. Therefore, regarding the prosecution's failure to disclose the benefit conferred on the informant, the Chief Justice wrote that

      [h]ad the jury been apprised of the true facts ... it might well have concluded that [the informant] had fabricated testimony in order to curry the favor of the very representative of the State who was prosecuting the case in which [the informant] was testifying, for [the informant] might have believed that such a representative was in a position to implement ... any promise of consideration. (17) Napue thus laid the groundwork for the case of John Brady, which came before the Court only four years later, in Brady v. Maryland. (18) Brady had been convicted of first degree murder, and while he did not deny that he had participated in the crime, he maintained throughout his trial that a companion, Boblit, had performed the actual killing. (19) Before Brady's trial had begun, the defense requested that the prosecution disclose any evidence documenting Boblit's statements. (20) The prosecution complied with the request and turned over the information, except for one noteworthy document in which Boblit admitted that he was the actual killer. (21) John Brady remained unaware of the existence of the document until after his conviction and unsuccessful appeal to the Maryland Court of Appeals. (22)

      On certiorari, the Supreme Court famously declared that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution," (23) thus establishing the principle that would henceforth be known as the Brady rule. The Court's fervent statements supporting the pronouncement suggest that the decision was fundamentally based on a question of fairness, and the ruling was fashioned as an unabashed attempt to safeguard justice. (24) Justice Douglas, writing for the majority, declared that "[s]ociety wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly." (25) He then quoted an inscription on the walls of the Department of Justice, reading, "The United States wins its point whenever justice is done its citizens in the courts," (26) and subtly admonished less scrupulous prosecutors who might be tempted to conceal exculpatory material. (27)

      But although the moral directive of the Brady rule seems obvious, its practical application is not. The years following Brady saw the Court simultaneously expand the scope of the Brady rule and the situations in which it applied, while also refining and restricting the definition of what constituted "material" evidence. (28) In Giglio v. United States, the Supreme Court held that evidence bearing on the credibility of a given witness is exculpatory and requires Brady disclosure, and further stated that "evidence of any understanding or agreement as to a future...