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. INTRODUCTION

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. Fessing er, 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. Bri an H. Bornstein,

Ph.D., is an Emeritus Pr ofessor in the Department of Psychology and College of Law at the

University of Nebraska-Lincoln. Jeffrey S. Neuschatz is a Professor of Psycho logy at the

University of Alabama at Huntsville. Danielle DeLoach and Megan A. Hi llgartner are

Master’s st udents in Exper imental Psychology at the Unive rsity 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 Profess or 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 cas e documentation used in thi s 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 t his 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 a bout Snitches: An Archival Analysis of Info rmant 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 exoner ated. 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 leadi ng causes are eyewitness misi dentification, 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/4FUG-

EH97] (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. LEGAL BACKGROUND

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 col lecting 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 Warni ngs for Prosecutors Using Criminals as Witnesses,

47 HASTINGS L.J. 1381, 1394 (1996).