The following editorial was published by the New York Times on July 16, 2017.
Prosecutors love jailhouse informants who can provide damning testimony that a cellmate privately confessed to a crime. Jailhouse informants, in turn, love the perks they get in exchange for snitching, like shortened sentences, immunity from prosecution or a wad of cash.
As you might imagine, though, in a market driven by such questionable motives, the testimony these informants provide is often unreliable.
Even worse, it can be deadly. False testimony from jailhouse informants has been the single biggest reason for death-row exonerations in the modern death-penalty era, according to a 2005 survey by the Center on Wrongful Convictions. They accounted for 50 of the 111 exonerations to that point, and there have been 48 more exonerations since then.
Last month, Texas, which has been a minefield of wrongful convictions — more than 300 in the last 30 years alone — passed the most comprehensive effort yet to rein in the dangers of transactional snitching.
Texas has become a national leader in criminal-justice reforms, after having long accommodated some of the worst practices and abuses in the nation. The state, particularly in light of past abuses, deserves credit for seeking innovative solutions to problems that have long proved resistant to change.
The new law requires prosecutors to keep thorough records of all jailhouse informants they use — the nature of their testimony, the benefits they received and their criminal history. This information must be disclosed to defense lawyers, who may use it in court to challenge the informant’s reliability or honesty, particularly if the informant has testified in other cases.
The law was recommended by a state commission established in 2015 to examine exonerations and reduce the chances of wrongful convictions. The commission also persuaded lawmakers to require procedures to reduce the number of mistaken eyewitness identifications and to require that police interrogations be recorded — smart steps toward a fairer and more accurate justice system.
But the new procedures on jailhouse informants shouldn’t have been necessary in the first place. Under longstanding Supreme Court rulings, prosecutors are required to turn over any evidence that might call an informant’s credibility into question — such as conflicting stories or compensation they get in exchange for their testimony. Yet far too many fail to do so.
A better solution would be to bar the use of compensated informants outright, or at least in cases involving capital crimes, as one Texas bill has proposed. Studies have shown that even when a defense lawyer is able to make the case that an informant has an incentive to lie, juries are just as likely to convict. And that’s assuming a defense lawyer uses such evidence — not always a safe assumption given the wide range of quality in the defense bar.
Also, making evidence admissible at trial only goes so far. The vast majority of convictions are the result of guilty pleas, which means a defendant may not even find out that an informant was paid to incriminate him before having to decide whether to accept a plea offer.
Some states have begun to require that judges hold hearings to test an informant’s reliability, much as they would test an expert witness’s knowledge — before the jury can hear from him.
But the deeper fix that’s needed is a cultural one. Many prosecutors are far too willing to present testimony from people they would never trust under ordinary circumstances. Until prosecutors are more concerned with doing justice than with winning convictions, even the most well-intentioned laws will fall short.