Other Issues and Links
Other Issues
Unreliable Informant Testimony
“[T]he use of informers, accessories, accomplices, false friends, or any of the other betrayals which are ‘dirty business’ may raise serious questions of credibility.” On Lee v. United States, 343 U.S. 747, 757 (1952). Testimony by informants and other witnesses who testify for benefit—colloquially known as “snitches”—is by far the most common source of false criminal convictions in the United States; a fact that exposes a deep structural flaw in the criminal justice system, easily exploited by those acting on self-interest, one for which due process has yet to find a reliable countermeasure. The Innocence Project has reported that in 15% of all wrongful convictions overturned by DNA testing, an informant or similar witness testified at trial. Seehttp://www.themip.org/index.php /snitch-testimony. A comprehensive historical study of 350 erroneous convictions concluded that one-third of them were due to “perjury by prosecution witnesses”—twice as many as the next leading source, erroneous eyewitness identification.
Informant testimony is likewise the most common source of false convictions in Virginia. Consider the case of Michael Hash:
“The case of Michael Hash illustrates another way jailhouse snitch testimony can be used for impure ends: in Hash’s case, law enforcement allegedly used a known jailhouse snitch as a de facto police agent in order to attain a conviction. Hash was just 15 when his 74-year-old mail carrier Thelma Scroggins was shot to death in 1996. A new sheriff reopened the cold case four years later and the then 19-year-old Hash found himself charged with murder, despite limited evidence. While incarcerated pre-trial, Hash was moved from the local jail in Culpeper, Virginia to Albemarle Charlottesville Regional Jail specifically to be housed with noted jailhouse snitch Paul Carter. Carter, who was being housed on federal drug charges, has testified roughly 20 times – so it was little surprise that he would later testify against Hash. At trial, Carter said prosecutors had not promised him any lenience for his testimony – yet he was released shortly after the Hash trial. Last year, Michael Hash was released from prison after 12 years when his conviction was overturned . . . [and] has since filed a federal civil lawsuit . . . .
The lawsuit maintains that Paul Carter “made himself available to anybody and everybody in the enforcement community when he felt he had some information that was helpful.” While he was awaiting sentence himself, Carter allegedly told his lawyer “I’m not still involve[d] with this crime life. I just find things out to cut my time down.” Hash’s attorneys say law enforcement officials met with Carter beforehand to brief him on the case against Hash before setting the two up to meet in jail.”
B. Lavietes,“Deal or no deal? The struggle with jailhouse snitches” (July 14, 2014).
The reason false informant testimony remains so pervasive is because of the reticence of courts to implement available, effective measures to prevent it. Instead, courts continue to rely on traditional safeguards that are almost entirely ineffectual, particularly in high-stakes, high-profile cases involving experienced informants. Primarily, those safeguards consist of the defendant’s right of confrontation and the government’s obligation to adduce only truthful, reliable testimony. Neither of these safeguards achieve their intended objectives, however, highlighting the need for other appropriate, available relief.
What can be done by the legislature? First, the legislature could require informant testimony to be corroborated by other evidence in order to be admissible at trial. Second, it could mandate that in all cases where the prosecutor intends to elicit informant testimony, the court must conduct a “reliability hearing” to assess whether the informant is telling the truth. And third, it could require that juries be instructed as to the significant problems with the reliability of informants.
Other Virginia Criminal Justice Reform Organizations
Virginians for Alternatives to the Death Penalty
Death Penalty Information Center: Virginia
Virginia Association of Criminal Defense Lawyers