Here is an aspect of criminal trial proceedings that rarely reach the consciousness of the general public. It almost never reaches the understanding of jurors: the snitch culture inherent in our criminal justice system.
The reality is this. When you incentivize someone to lie, they will. This is especially true when that incentive is to receive money or get out of jail themselves.
This is a huge problem in our criminal justice system. It is the leading cause of wrongful conviction in capital cases here in the US. Almost 50% of capital wrongful conviction cases were cases in which the defendant was convicted on the strength of an informant who had something to gain by falsely implicating the defendant.
Many of these cases which have been studied afterward were found to have had no other evidence. In other words, if the informant hadn’t lied, the defendant would have almost certainly gone free.
In fact, in the podcast about the story of Jason Strong, an incentivized informant was responsible for his arrest. The man who would become his co-defendant, Jeremy Tweedy, implicated Jason even though he had only met him one time.
In what is possibly a telling detail, Tweedy’s hand was maimed by police “accidentally” in a car door on his way to or from the police station. Strong in the interview admits that he suspects Tweedy was intimidated by police.
Incentivized Informants and The Innocent Project
However, this is not the usual way of incentivization of informants. According to The Innocence Project, 15% of wrongful conviction cases that were overturned using DNA testing were originally convicted because of statements from people with incentives to testify.
Most of the time those incentives were not disclosed to the jury. Under our current laws, in most states, these incentives don’t have to be reported to the jury.
In addition, the other thing that isn’t routinely done is to record witness statements or make an effort to corroborate whether a witness was fed information (intentionally or unintentionally) about the case by law enforcement.
Incentivized witnesses aren’t always sought out. Sometimes an informant comes to law enforcement – particularly in the case of people who in jail or prison with a person awaiting trial – in hopes of getting a reduced sentence for their role in the trial.
Because of the long history of incentivized testimony in our country, no overt promise has to be given by law enforcement in order for a testimony to be considered incentivized.
How Can We Change This System?
The Innocence Project lays out three major changes that would uphold the system and result in fewer wrongful convictions:
- Electronically Recorded Informant Statements
Whether it is done intentionally or unintentionally, law enforcement can end up feeding facts to potential informants. This is a risk that is easy to protect against if our adversarial system is going to be fair for both sides.
- Corroboration Hearings For All Informants
Hearings to assess the reliability of the statements by informants intended to be used in the trial or for a plea deal should be routinely used. Here are the criteria this hearing should determine:
- The relationship between the defendant and the informant.
- The criminal history of the informant.
- Other cases in which an informant provided testimony.
- Incentives which were offered to the informant in this or any other trial.
- a description by the witness of all the times he or she spoke to the defendant.
- The specific location of these conversations.
- Others who were present and a specific account of the conversation.
- The substance of the testimony must be corroborated by other evidence.
- Jury Instructions
It is obvious that juries believe lying informants. We have the wrongful convictions to prove it. Jury instructions need to be better. Additionally, juries need to understand the long history of incentivized informants and be given all pertinent information available to weigh the strength of the informant’s testimony.
While the reality of incentivized informants is one of the biggest problems in wrongful convictions in our country, it’s not the only one. We will be looking at 5 more of the most common reasons in future blog posts.
For more information on these and other aspects of incentivized informants, visit The Innocence Project.