Unreliable Statements & Incentivized Informants

According to the Innocence Project, 15 percent of all wrongful convictions later cleared by DNA testing featured false testimony by jailhouse informants. In murder cases, that number is much higher, at 50 percent. There is a litany of reasons that information given to the police, or even made under sworn oath to tell the truth, may not be the full truth - or may not even be close to the truth. Every year innocent people go to prison, or even death row, because of government informants who lie to get a good deal or because some kind of benefit was offered to them by the government.  Studies have identified the problem - that quid pro quo dealing between informants and the government is largely informal, unregulated, and highly secretive. On top of that, the informants hold all the cards, because they have valuable information the government wants. When the  government must find a way to develop evidence in a crime -  the method is often to give some kind of deal, bargain, or a quid pro quo offer to the informant.  Whatever you call this kind of evidence brokering, the result is an incentivized informant.

Often, statements from people with incentives to testify- incentives that are not disclosed to the jury—are the central evidence in convicting an innocent person. Those incentivized to testify are often unreliable and untrustworthy. Snitches – those that are in jail when they are asked to cooperate – have a very high incentive to cooperate with law enforcement and provide statements that will improve their situation. The National Registry of Exonerations notes; "Jailhouse snitch testimony, as it is commonly known, is notoriously unreliable because the incarcerated witnesses are strongly motivated to say what the prosecution wants, usually because they get substantial reductions in their own sentences in return."

It’s helpful to understand the different reasons someone might make false statements to incriminate another person. It’s also helpful to understand the different ways in which false information may be intentionally provided to the criminal justice system. A couple of different terms describe the types of false information that is used against innocent people:

Perjury is known as the offense of willfully telling an untruth in a court after having taken an oath or affirmation. False accusations are when someone knowingly makes a charge of wrongdoing against another person. Perjury claims are usually proven based on a discrepancy between an initial deposition of a witness and their testimony on the stand. The National Registry of Exonerations has chronicled more than 2,000 cases of wrongful conviction since 1989. In more than half of those cases, perjury and/or false accusations played a role.

Incentivized testimony is when a person has something to gain by making the statement. Often, statements from people with incentives to testify are the central evidence in convicting an innocent person. Those incentivized to testify are often unreliable and untrustworthy – and often the deals that were made are not disclosed to the jury. Money is sometimes paid for information, but there are many more ways that incentives may be provided. A person on parole or probation can be threatened with a revocation, or someone in the community engaging in sketchy behavior may get a promise that the police or their probation officer will turn a blind eye to behaviors that could get the person's probation or parole revoked. In some cases, parents are threatened with having their children removed from the home if they don’t make statements that will incriminate another person. The list of reasons and ways in which the government secures incentivized information is long and almost never ending.

There is also a rampant horse-trading system for jailhouse “snitches” and paid informants willing to provide evidence in criminal trials. Arrangements can range from get-out-of-jail-free cards to a hot lunch or simple extras in prison, like a better cell, an easier work assignment, or relocating to a safer prison wing. Or a serious trade can be made, like a deal that the snitch gets complete immunity from charges, even if the charge is murder. The U.S. Supreme Court has ruled that prosecutors have authority to provide such incentives to informants in exchange for information. But not all snitches see a “payday” of getting something concrete in return. Police or prosecutor intimidation can result in false testimony as well. The implicit promise to turn a blind eye to misconduct that could lead to criminal charges, or could get someone’s probation or parole revoked, are high incentives to provide information, even if it is false.  No one wants to go back to jail when they are in the community, and the threat of revocation is a strong incentive. The pressure can be so great to give the police information to help pin a crime on someone that the informant makes statements to the police that are completely unfounded and have no basis in the truth.

The National Registry of Exonerations defines jailhouse informants as "a witness who was in custody with the exonerated defendant and who testified that the defendant confessed to him." For an in-depth report on case-by-case occurrences, the Northwestern University School of Law’s Center on Wrongful Convictions issued this 2004-2005 report: The Snitch System. Because snitches are highly unreliable and because the end result of false statements can be so devastating in wrongful conviction cases, defense attorneys and even some judges believe that testimony from snitches should not be allowed in the courtroom.

Additionally, the National Registry of Exonerations notes; "Jailhouse snitch testimony, as it is commonly known, is notoriously unreliable because the incarcerated witnesses are strongly motivated to say what the prosecution wants, usually because they get substantial reductions in their own sentences in return."

But the jailhouse informant is not the only kind of snitch that can put an innocent person in prison. Snitches come in all shapes and sizes, and their various labels come from their position in the grand scheme of the proceedings. The article Government Snitches: Incentivized Witnesses Are the Leading Causes of Wrongful Convictions describes the different kinds of snitches upon which the government relies:

The “jailhouse snitch” is the prototypical incentivized witness who informs law enforcement or jail staff about what another prisoner has supposedly said or done, usually the result of an overheard conversation or at the snitch’s prodding. This type of informant is often involved in many wrongful convictions.

The “professional snitch” makes a living out of putting people behind bars by selling information to law enforcement. Some professional snitches, like Andrew Chambers discussed on p.6 of the Government Snitches article, have made millions of dollars from the government testifying against defendants.

The “accomplice informant” is the codefendant of the person the informant is offering information against in an effort to get his or her own charges dropped or sentence reduced. These informants are commonly used by law enforcement to ensnare others in the scheme, especially the bigger fish. Interestingly, the Department of Justice does not consider accomplice witnesses as “confidential informants” to which rules governing protection and payments apply. Instead, the government considers these informants “cooperating defendant/witnesses” who have an expectation of a reward for their services. Confidential informants, unlike accomplice witnesses, also do not testify in court in order to protect their identity in future cases.

The “calumniator” has traits of the other types of informants but is distinguished by the desire to shift as much blame as possible onto someone else in order to escape liability. It is not uncommon for the calumniator to place blame on an innocent person, which has resulted in many wrongful convictions.

There are many different ways that people may be incentivized to provide information. Whatever the “this-for-that” trade turns out to be, it is a sad fact that many wrongful convictions occur because of the false testimony of incentivized, coerced or paid witnesses.