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The Justice Project Calls for Jailhouse Snitch Reforms

Snitch-dependent prosecutions are the leading cause of wrongful convictions in capital cases, according to a 2005 report of the Center on Wrongful Convictions at Northwestern University School of Law. As of May 11, 2007, over 120 people have been exonerated from death row since capital punishment was reinstated in 1973. At least 51 of those cases were based at least in part on the testimony of “witnesses with incentives to lie.”

The Justice Project (TJP) of Washington, D.C., recently issued “A Policy Review” of Jailhouse Snitch Testimony, highlighting the problems with such testimony. It also calls for several criminal justice reforms designed to enhance “the evidentiary value of a highly unreliable brand of cooperating witness testimony.” Among the changes TJP supports are written pretrial disclosures; pretrial reliability hearings; corroboration; and cautionary instructions.

“Current procedural safeguards are unable to guard against untruthful testimony” because “the processes by which jailhouse snitches are compensated and their testimony is developed are largely hidden from view (and from triers of fact),” according to TJP.

“The adoption of mandatory, automatic pretrial disclosures related to jailhouse snitch testimony…would allow for a complete airing of all relevant information bearing on a jailhouse snitch’s credibility,” notes TJP. Those disclosures must be in writing and address: “statements made by the accused to the jailhouse snitch; incentives that the witness received, will receive, or may receive in exchange for testimony (e.g., promises for sentence reductions, offers to lesser please, improved incarceration conditions for in-custody witnesses, or anything else of value); whether the witness has agreed to testify and prior criminal trials, and, if so, how many times he or she has done so (or agreed to do so) and whether the witness has received any previous benefits for testimony; the complete criminal history of the jailhouse snitch; whether at any time prior to trial the witness has recanted his or her testimony or made statements inconsistent with the testimony to be presented at trial; and anything else bearing on the witness’ credibility.”

“Because the stakes are so high…and the propensity for inadvertent bias is so great,” TJP believes that “a reliability determination with respect to jailhouse snitches should be made by a neutral, objective party and not by the prosecutor alone.” Noting a similar process in the form of a “Daubert hearing” with respect to the reliability of scientific evidence, TJP proposes the implementation of pretrial reliability hearings. “The best policy for ensuring the integrity of the criminal justice system is a requirement that the prosecution bear the burden of proof in showing that jailhouse snitch testimony is sufficiently reliable to be put before a jury in criminal prosecutions,” declared TJP.

The third reform proposed is a requirement that corroborative evidence “demonstrate not only that the events described by the snitch are correct, but…also…that the snitch’s story factually links the offense to the accused. Further, the testimony of another snitch must not be considered adequate corroboration.” The report observes that “corroboration requirements alone are not sufficient to prevent the risks inherent in jailhouse snitch testimony.” Rather, “without other measures, such as written disclosures, reliability hearings, and jury instructions, a corroboration requirement for jailhouse snitch testimony is likely to fall short of its intended purpose.”

Finally, once offered at trial, the absence of a limiting instruction is likely to lead juries “to assume the existence of some threshold of witness credibility” given that snitch testimony is offered by the State. Therefore, TJP proposes the adoption of a cautionary jury instruction requiring the presiding judge to advise the jury that it must take several factors into account which hear on the extent to which the snitch’s testimony is reliable. Those factors should minimally include each of the factors proposed for the written pretrial disclosures and considered at pretrial reliability hearings. As with corroboration, “cautionary jury instructions should not be considered a sufficient safeguard against informant perjury in and of themselves,” notes the report. Rather, “they should be given by courts as follow-through measures to reinforce the dependability of the determinations made by judges at pretrial reliability hearings.”

Source: “Jailhouse Snitch Testimony, a Policy Review,” The Justice Project (2007)(

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