Informants v. Innocents: Informant Testimony and its Contribution to Wrongful Convictions

• Author: Melanie B. Fessinger - Brian H. Bornstein - Jeffrey S. Neuschatz - Danielle DeLoach - Megan A. Hillgartner - Stacy A. Wetmore - Amy Bradfield Douglass
• Position: M.L.S, is a Ph.D. student in Psychology at the Graduate Center and John Jay College of Criminal Justice, City University of New York - Ph.D., is an Emeritus Professor in the Department of Psychology and College of Law at the University of Nebraska-Lincoln - Professor of Psychology at the University of Alabama at Huntsville - Master student in ...
• Pages: 47-86

INFORMANTS V. INNOCENTS: INFORMANT TESTIMONY AND ITS CONTRIBUTION TO WRONGFUL CONVICTIONS MELANIE B. FESSINGER, BRIAN H. BORNSTEIN, JEFFREY S. NEUSCHATZ, DANIELLE DELOACH, MEGAN A. HILLGARTNER, STACY A. WETMORE, AND AMY BRADFIELD DOUGLASS* I. I NTRODUCTION Wrongful convictions are not an uncommon occurrence. 1 Innocent individuals spend years, sometimes decades, incarcerated for crimes that they did not commit. Some have even spent these years on death row awaiting an opportunity to prove their innocence and secure their freedom. 2 * Melanie B. Fessinger, M.L.S, is a Ph.D. student in Psychology at the Graduate Center and John Jay College of Criminal Justice, City University of New York. Brian H. Bornstein, Ph.D., is an Emeritus Professor in the Department of Psychology and College of Law at the University of Nebraska-Lincoln. Jeffrey S. Neuschatz is a Professor of Psychology at the University of Alabama at Huntsville. Danielle DeLoach and Megan A. Hillgartner are Master’s students in Experimental Psychology at the University of Alabama in Huntsville. Stacy A. Wetmore, Ph.D., is an Assistant Professor of Psychology at Roanoke College. Amy Bradfield Douglass, Ph.D., is a Professor of Psychology at Bates College. Author notes. The first author was supported by the National Science Foundation Graduate Research Fellowship Program under Grant No. 1610400 during preparation of this manuscript. The case documentation used in this project was provided by the Innocence Project and Winston and Strawn. Any opinions, findings, and conclusions or recommendations expressed in this material are those of the author and do not reflect the views of the National Science Foundation, the Innocence Project, or Winston and Strawn. The dataset presented in this paper was also used in another paper submitted for publication in a psychology journal: Jeffrey S. Neuschatz, Megan A. Hillgartner, Danielle DeLoach, Melanie B. Fessinger, Stacy A. Wetmore, Amy Bradfield Douglass, & Brian H. Bornstein, The Truth about Snitches: An Archival Analysis of Informant Testimony (forthcoming and available from authors). The analysis and presentation of the data between the two papers is distinct. 1 As of April 2020, the National Registry of Exonerations lists 2,588 exonerations. NAT’L REGISTRY EXONERATIONS, http://www.law.umich.edu/special/exoneration/Pages/about.aspx [https://perma.cc/A47J-RZEY]. The Innocence Project lists 367 DNA exonerations. Exonerate the Innocent , INNOCENT PROJECT, https://www.innocenceproject.org/exonerate/ [https://perma.cc/8AFL-VGFG]. 2 There have been 156 death row inmates exonerated. Innocence , NAT’L COALITION TO ABOLISH DEATH PENALTY, http://www.ncadp.org/pages/innocence [https://perma.cc/J2N8- 150 CAPITAL UNIVERSITY LAW REVIEW [48:149 These discoveries have paved the way for scholarly attention and criminal justice reforms that aim to lessen the potential for wrongful convictions. False informant testimony is a leading cause of wrongful convictions. 3 Between seventeen and twenty-one percent of cases exonerated by DNA testing involved informants. 4 In fact, one scholar cited informants as “the leading cause of wrongful convictions in U.S. capital cases . . . .” 5 His analysis revealed that informants contributed in 46.0% of the 111 death row cases resulting in exonerations between 1973 and 2004. 6 In light of the prevalence of informants in wrongful conviction cases, it is important to bring attention to their potential for error. This paper discusses the role of informants in wrongful conviction cases by reviewing legal precedent, discussing prior psycholegal research, and presenting an empirical study on their use and impact at trials. In Part II, we discuss how the courts handle informant testimony and the legal implications of this evidence. In Part III, we provide an overview of the existing psycholegal research on informants. In Part IV, we present the results of a content analysis of real-world exoneration cases that involved informants. In Part V, we discuss psychological mechanisms that could explain the persuasiveness of this unreliable testimony. In Part VI, we conclude with some implications of the present study. 37XZ] (last visited Apr. 7, 2020). The Innocence Project lists 21 DNA death row exonerations. DNA Exonerations in the United States , INNOCENCE PROJECT, https://www.innocenceproject.org/dna-exonerations-in-the-united-states/ [https://perma.cc/YZ55-FN5R] (last visited Apr. 7, 2020). 3 The other leading causes are eyewitness misidentification, false confessions, faulty forensic science, government misconduct, and ineffective counsel. % Exonerations by Contributing Factor, NAT’L REGISTRY OF EXONERATIONS, https://www.law.umich.edu/ special/exoneration/pages/exonerationscontribfactorsbycrime.aspx [https://perma.cc/4FUGEH97] (last visited Apr. 20, 2020). 4 BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO WRONG 279 (2011); Innocence Staff, Informing Injustice: The Disturbing Use of Jailhouse Informants , INNOCENCE PROJECT, https://innocenceproject.org/informing-injustice/ [https://perma.cc/QQB2-CH6W] (last visited Apr. 20, 2020). 5 ROB WARDEN, NW. UNIV. SCH. OF LAW CTR. ON WRONGFUL CONVICTIONS, THE SNITCH SYSTEM 3 (2004), https://deathpenaltyinfo.org/documents/SnitchSystemBooklet.pdf [https://perma.cc/3JC7-W4T3]. 6 Id. 2020] INFORMANTS V. INNOCENTS 151 II. L EGAL B ACKGROUND Informants, in the most general sense, are individuals who provide information about criminal activity. 7 They can be paid by the government to infiltrate criminal circles and collect incriminating evidence, be planted by the government where they are likely to overhear incriminating information (e.g., prison cells), or collect incriminating evidence themselves and come forward in hopes of gaining some incentive. In this paper, we discuss the latter type of informant—that is, those who collect or encounter incriminating evidence themselves and are not paid in advance or planted by the government to collect information. 8 Testimony from these informants has been referred to as “bartered testimony” because the informant has often negotiated a deal in return for his or her testimony. 9 This definition of informant can be further broken down into three different types: jailhouse informants, cooperating witnesses, and accomplice witnesses. 10 Jailhouse informants are individuals who gain evidence about a fellow inmate’s case while incarcerated and often come forward in return for some promised incentive. 11 Jailhouse informants’ testimony typically includes a secondary confession, meaning they claim to have heard the defendant confess to committing the crime. 12 Jailhouse informants have been called the most dangerous among the different types of informants, 13 namely because their claims can be entirely fabricated with no possibility of corroboration. Cooperating witnesses are citizens with incriminating 7 Informant , BLACK’S LAW DICTIONARY (11th ed. 2019). 8 The former type of informants (i.e., those paid or planted by the government in advance of collecting information) are distinguishable because they act as government agents and therefore have more restrictions on their collection of evidence. For a discussion of how the law applies to informants who act as government agents, see Elizabeth A. Ganong, Involuntary Confessions and the Jailhouse Informant: An Examination of Arizona v. Fulminante, 19 HASTINGS CONST. L. Q. 911, 919–20, 930–31 (1992). 9 Jeffrey S. Neuschatz, Deah S. Lawson, Jessica K. Swanner, Christian A. Meissner & Joseph S. Neuschatz, The Effects of Accomplice Witnesses and Jailhouse Informants on Jury Decision Making , 32 L. & HUM. BEHAV. 137, 138 (2008). 10 Jessica A. Roth, Informant Witnesses and the Risk of Wrongful Convictions , 53 AM. CRIM. L. REV. 737, 747–48 (2016). 11 Innocence Staff, supra note 4. 12 Neuschatz et al., supra note 9, at 138. 13 Stephen S. Trott, Words of Warnings for Prosecutors Using Criminals as Witnesses , 47 HASTINGS L.J. 1381, 1394 (1996). 152 CAPITAL UNIVERSITY LAW REVIEW [48:149 evidence about a defendant’s case but who require an incentive to testify. 14 Cooperating witnesses typically learn about the case through some connection with the defendant (e.g., his friend) or through their own experiences (e.g., as an eyewitness). 15 For example, an eyewitness may be reluctant to testify for fear of retaliation, thus a prosecutor may have to provide some type of incentive (e.g., relocation funds) to secure his or her testimony as a cooperating witness. 16 Finally, accomplice witnesses are individuals who allegedly committed the crime with the defendant and who testify against the defendant for some leniency in their own case. 17 Informants are a unique type of witness in that prosecutors can offer incentives in exchange for their testimony in a way otherwise proscribed for witnesses. 18 Incentives generally come in the form of leniency in the informant’s case, but can also be rewards such as money, food and telephone privileges for those incarcerated, or special treatment for family members. 19 These incentives might be necessary for the government to collect information about criminal activity that would be inaccessible through traditional means. 20 This “cooperation system” benefits both the informant and the prosecutor: the informant gets some leniency or benefit, and the prosecutor gets information that will help in the prosecution of other, often more culpable and dangerous, criminals. 21 Some argue that the effectiveness of the criminal justice system is dependent on the use of informants, in that many crimes would go undiscovered, unprosecuted, or both without the information that only they can provide. 22 This cooperation system also, 14 Roth, supra note 10, at 748. 15 Id. 16 Id. at 747. 17 Id. at 751–52. 18 Id. at 745. 19 See George C. Harris, Testimony for Sale: The Law and Ethics of Snitches and Experts , 28 PEPP. L. REV. 1, 16 (2001). 20 Id. at 46. 21 Id...