August 2, 2011

Don't Trust, Just Verify

Back in 2007, I wrote about how conflicted I was over the issue of criminal defendants "rolling" on one another in order to try and get a lower sentence. In other words, "snitches." As I said back then, cooperating with authorities is often the only way a defendant in the federal system can reduce his sentence, so defense attorneys are bound to pursue that option when it presents itself. On the other hand, when someone else is doing the cooperating against our client, we rail about the unreliability of testimony bought for a reduced sentence.

With that in mind, I'm intrigued by what might come of a law California Governor Jerry Brown just signed that takes aim at jailhouse informants:
Jerry brown jailhouse informant law signed The new law requires prosecutors to present forensic evidence or uncompromised testimony that corroborates information provided by in-custody witnesses who claim to have been told or overheard incriminating statements by the defendant.
In other words, a jury could not convict someone on the word of a snitch alone. According to Scott at Simple Justice, the law is a stricter version of one passed in Texas (and was vetoed by Cali's interim governor in 2008 because it would make it too hard to convict people). Scott also has some of the evidence that shows how unreliable snitch testimony can be.

Since snitches get a benefit for their testimony, in at least the possibility of a reduced sentence, doesn't that quid pro quo raise other questions? For a while late in the 20th century, one court said it did.

In 1998, the Tenth Circuit, in a case called US v. Singleton, held that such arrangements violated a federal statute providing that "whomever . . .directly or indirectly" gives "anything of value" to a witness based on his testimony commits a crime. The court specifically rejected the Government's attempt to read a "law enforcement exception" into that statute and held that the testimony of Singleton's codefendant at her trial, produced as result of a plea agreement requiring cooperation, should have been suppressed. I was in law school when Singleton came down and remember what a shock wave it sent through the legal community.

Of course, such a ground breaking precedent couldn't stand. The entire Tenth Circuit reheard the case en banc and decided, 9-3, that the statute did not apply to snitch situations. "Whomever," the court concluded, did not include prosecutors acting in their official capacity. Crisis averted, things returned to normal.

But, as Scott points out, the status quo has serious problems. Maybe laws like California's will help change it.  Not every snitch is unreliable, but the nature of the beast is that there is motive to make stuff up.  As usual, skepticism is the best bet.  Don't trust, just verify.

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