The Case Against Informants

In defense of using informants, it is said to be necessary for police and prosecutors to work with them because they have contacts with other criminals. The informants therefore must be given incentives because otherwise they will not confess, plead guilty, and incriminate others. This argument is not illogical, but it does not excuse a system without proper controls upon its abuse. Merriam-Webster’s Dictionary suggests the following synonyms for “informant”: “betrayer, informer, rat, snitch, snitcher, squealer, stool pigeon, talebearer, tattler, tattletale, telltale.”

The problem is not uniform among all criminal investigations. White-collar crime, political crimes, and most financial crimes are built upon documents that are connected and explained by witnesses. Witnesses receiving benefits for their testimony in those cases are almost always corroborated by documents—usually ones created or adopted by the defendants. Therefore, the opportunity to convict someone by perjury alone in those cases is less likely.

Cracks in the System

Federal drug cases have great potential for misusing informants. There are several aspects of law that make those cases particularly susceptible. The first is the federal drug conspiracy law. Anyone who agrees with another to commit a drug crime is subject to the same penalties as one who individually committed the underlying offense. (21 U.S.C. § 846.) That means, in a large drug conspiracy, the kingpin and the lowly mules may have the same potential statutory maximum and mandatory minimum punishments. Although the federal sentencing guidelines distinguish among participants for their role, mandatory minimums have few exceptions—the most common being substantial assistance in the prosecution of others. (See 18 U.S.C. § 3553(e).) There is no federal parole. When the conspirators have exhausted the number of persons they can cooperate against within their own circle, they must look elsewhere.

The second reason that informant testimony in federal drug cases is a danger is the rules of evidence. A coconspirator’s statement is admissible against a defendant if it was made during and in furtherance of the conspiracy. (Fed. R. Evid. 801(d)(2)(E).) That means an informant can testify about what others said during a conspiracy without fear of hearsay objections. For instance, “Joe told me that the defendant delivered 10 kilos of cocaine to him.” If made, during and in furtherance of the conspiracy, it is an admissible statement regardless of whether Joe testifies or even if the informant never met the defendant. No cocaine need be recovered or admitted at trial.

This segues to the third reason. Corroboration of a testifying informant is not legally required in federal courts or many other jurisdictions. (Caminetti v. United States, 242 U.S. 470, 495 (1917).) Some states have witness rules for cooperating accomplices and other informants that require corroboration, albeit slight. (See, e.g., Tex. Code Crim. Proc. Ann. arts. 38.14 & 38.141.) Federal courts do not. Federal drug conspiracy convictions have occurred after trials where no drugs, money, or other physical evidence was introduced, and the only testifying witnesses were persons who previously pleaded guilty to reduce their own liability in the case. (See United States v. Payton, 328 F.3d 910 (7th Cir. 2003).) Words alone can support a conviction if they establish the defendant’s intent to agree to commit the offense with at least one other person. (See, e.g., United States v. Soto, 794 F.3d 635, 656–59 (6th Cir. 2015).)

Witnesses also can artificially inflate the amount of drugs that are the subject of the conspiracy just by saying so. A few courts have accepted the concept of “sentencing entrapment” as a defense to fabricated drug counts. (United States v. Cortes, 757 F.3d 850, 860–63 (9th Cir. 2014).) However, once someone is convicted, all drug amounts that are “relevant conduct” to the conspiracy are used to calculate a defendant’s sentence, even those in counts in which the defendant was acquitted. (U.S.S.G. 1B1.3; see United States v. Wallflower, 643 F.3d 572 (7th Cir. 2011).)

A Double Standard

President Trump recently decried the use of cooperating witnesses—or “snitches”—during the investigations of his former campaign manager Paul Manafort and his ex-lawyer Michael Cohen. These investigations also involved voluminous documents. After convicting Manafort, jurors said they placed little weight on the testimony of cooperating witness Rick Gates as opposed to Manafort’s own business records. “We agreed to throw out his testimony and look at the paperwork,” said one juror. (Matt Zapotosky, Lone Holdout on Manafort Jury Blocked Conviction on All Counts, Juror Says, Wash. Post (Aug. 23, 2018).)

The irony is that the abuse of informants has often been during the war on drugs, where President Trump’s former attorney general, Jeff Sessions, grew his stature as a prosecutor by the use of informant testimony. As US Attorney (USA) for the Southern District of Alabama (1981–95), Sessions took a small office and exponentially enlarged it to prosecute more drug cases. That meant focusing on many street-level drug crimes and flipping those defendants to assist in the prosecution of others.

Sessions became a US Senator for Alabama after a short stint as the state’s attorney general. However, his 14 years as USA left their mark. Most of the policies and prosecutors remained in the Southern District of Alabama after 1995. These were documented in the 1999 PBS Frontline documentary Snitch. In the film, Sessions confirmed his office’s practice of reducing by half the sentences of cooperating witnesses. In actuality, the 50 percent discount went to virtually all drug defendants who agreed to testify against others, regardless of whether they ultimately testified or not. Those who did testify often received even more deeply reduced sentences, upon the government’s request.

Snitch documented several cases in southern Alabama during, and directly after, Sessions’s tenure as USA. In one case, a convicted drug defendant talked about a federal prosecutor’s pressure on him to testify against his friend in order to avoid a life sentence for himself. He described her ultimatum that either he or his friend would get a life sentence, but it was his choice. In a folksy parlance, she stated that if he chose wrong, “You can call your family and tell them to break your plate.”

In another example, a single mother had been dating a man who was distributing drugs. She was at most a passive witness to his crimes, but when all others in the conspiracy had pleaded guilty for reduced sentences, her conviction was his only chance to escape a severe punishment. She was convicted at trial solely on the testimony of admitted drug dealers. Her 20-year sentence was longer than those of the main actors. After years of being separated from her children, who were raised by her eldest daughter, President Bill Clinton commuted her sentence on his final day in office.

The most invasive use of informants in the film occurred in the small, rural community of Uniontown, Alabama. The town was approximately 90 percent African American, and almost half of the population lived below the poverty line. Several local young men were responsible for bringing cocaine to the area for distribution. After a massive raid by federal and state agents, the dealers immediately began incriminating friends, relatives, and neighbors. Seventy defendants were indicted in a town of less than 3,000 residents.

There was a disparity between the evidence linking the main actors in the conspiracy and the dozens of others implicated by them. A young man named Cedric Jones was the kingpin. He had several cars, expensive jewelry, and an AK-47 rifle. He admitted making hundreds of thousands of dollars distributing crack cocaine. He became the government’s star witness, telling others, “I got to please them to help myself.” Other defendants were convicted merely on his testimony, corroborated by no physical evidence. They often had no criminal history and worked in farming. Civil forfeitures, which need only be proven by a preponderance of evidence, caused seizures of real property, farm equipment, and livestock.

Cash for Testimony

The government pays cash for incriminating information and testimony. This is troubling because the financial incentive to make cases against others may be much greater than the personal integrity of the informants. The job of a paid drug informant is not held in high regard even among law enforcement. Federal agencies hold them to lower standards than their own employees.

The US Department of Justice’s Office of Inspector General (OIG) studied the Drug Enforcement Agency’s (DEA) use of paid informants between 2010 and 2015. It found that about 9,000 DEA confidential sources received $237 million during that time. Just nine of those drug informants were paid a total of $25 million. The potential for waste and fraud was criticized, as was the failure to adhere to the attorney general’s guidelines for use of informants. The OIG found DEA files did not document the reliability of informants, and that they sometimes subcontracted their work without oversight by DEA.

The Federal Bureau of Investigation’s (FBI) Confidential Human Source Policy Guide, a nearly 200-page manual, shows the bureau has devised a variety of ways to pay informants, both before and after trial, via reimbursements and through a cut of asset forfeitures. Some of these methods, especially post-trial lump-sum payments, allow such witnesses to underplay their financial stake in the defendant’s conviction during their testimony (e.g., “I have received nothing for my testimony. I am just here to tell the truth.”). This prevents effective cross examination about the witnesses’ motivations to lie.

Freedom for Testimony

The greatest benefit for testimony is liberty. Randall Dale Adams, featured in the Errol Morris documentary The Thin Blue Line, was convicted of murder because the actual killer testified against him in exchange for immunity. A report by Northwestern University School of Law, Center on Wrongful Convictions (The Snitch System: How Snitch Testimony Sent Randy Steidl and Other Innocent Americans to Death Row (Chicago: Nw. Univ. Press, 2005) [hereinafter The Snitch System]), documented many other murders where the informant later turned out to be the perpetrator. The report found that 45% of wrongful convictions between 1973 and 2005 were caused primarily by false informant testimony.

Ten years before the documentary Snitch, the State of California had an informant scandal. (Robert Reinhold, California Shaken over an Informer, N.Y. Times, Feb. 17, 1989.) One witness in particular, Leslie Vernon White, testified in many highly publicized felonies, including murders. He later admitted fabricating evidence in those cases in exchange for money and prison furloughs. With access to a jail phone and a suspect’s name, White impersonated bail bondsmen, police officers, and prosecutors to get all the information he needed to frame other inmates. He even called victims’ families for information. Then he would pretend to be a prosecutor and have himself transferred to court with the suspect so he could say the person confessed to him when they were alone together.

A Florida case exposed the government’s use of two dozen inmates to convict businessman Nino Lyons of drug trafficking without any other corroborating evidence. (Brad Heath, Prosecutors’ Conduct Can Tip the Scales, USA Today, Sept. 23, 2010.) Evidence undermining the informants’ credibility had been withheld from the defense. That led the federal district judge to overturn Lyons’s conviction and dismiss the case with prejudice. (United States v. Lyons, 352 F. Supp. 2d 1231 (M.D. Fla. 2004).) This later resulted in a finding of Lyons’s actual innocence. (United States v. Lyons, 726 F. Supp. 2d 1359 (M.D. Fla. 2010).) Ultimately, the federal government paid Lyons an undisclosed settlement.

Illegal Benefits

Other benefits are sometimes given to informants, even ones that are clearly illegal. During the prosecution of a large drug organization in Chicago in the early 1990s, cooperating witnesses were allowed to use illegal drugs and have conjugal visits while in custody. (See United States v. Burnside, 824 F. Supp. 1215 (N.D. Ill. 1993).)

There is little doubt defense attorneys would incur liability for giving any benefits to potential witnesses. One federal appellate panel briefly considered treating prosecutors by the same standard, likening it to bribery. (United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998).) That proposition was overruled on rehearing en banc only months later. (United States v. Singleton, 165 F.3d 1297 (10th Cir. 1999).) The government can provide value for testimony. The defense cannot.

Dangers Uncovered

Two innovations in recent years have put a spotlight on misconduct by informants. The first is DNA testing. It was discovered after DNA exonerations that flawed evidence—including fabricated informant testimony—led to the wrongful convictions. In 15% of wrongful conviction cases, overturned through DNA testing, statements from people with incentives to testify—particularly incentives that are not disclosed to the jury—were critical evidence used to convict an innocent person. (Innocence Project.)

The second innovation is the creation of innocence projects and conviction integrity units. The former are nonprofits or law school clinics. The latter exist within prosecutors’ offices. Both examine old cases for instances of wrongful convictions and actual innocence. Working in tandem, The Innocence Project, a local pro bono attorney, and the Tarrant County District Attorney’s Office of Fort Worth, Texas, recently freed John Nolley after 19 years in prison for a murder he did not commit. (Tarrant County District Attorney Dismisses Murder Charges Against John Nolley Based on Actual Innocence, Ending His 21 Year Quest for Justice, Tex. Trib., Oct. 3, 2018).) False statements by three different witnesses, uncorroborated by any physical evidence, led to his wrongful conviction.

Fixing The System

“Pragmatic changes requiring corroboration of the facts to which an informant testifies, pretrial disclosures, reliability hearings, and special jury instructions raise the evidentiary threshold and improve the quality of evidence presented at criminal trial.” (The Snitch System, supra, at 1.) Some of these changes have already been made, but not all, and not everywhere.

In 2017, Texas amended its criminal discovery rule to require that prosecutors provide (or allow the defense to copy), all criminal history, promises of benefits, any previous cooperation, or evidence bearing on the credibility of a person who claimed to have received incriminating statements from a defendant while both were in a correctional facility. (Tex. Code Crim. Proc. Ann. art. 39.14(h-1).) Compliance with such a law back in 1997 would likely have exposed the flaws in John Nolley’s case. Similar laws should be implemented in all jurisdictions.

Although, the Supreme Courts’ rulings in Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), already place a burden on the prosecution to provide the defense with impeaching information about informant witnesses, the effect of withholding such evidence is examined retrospectively. Under that line of cases, an omission will have no remedy if a court examining the conviction does not find it might have affected the outcome of the trial. (United States v. Agurs, 427 U.S. 97, 104 (1976).) More important, absent a duty to disclose the evidence in advance of trial or plea, the defense may never learn of the witness’s motivations to lie.

Once discovery is provided, courts should hold pretrial hearings on the reliability of the proposed informant evidence. A model for this already exists in matters of expert testimony. (Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); Kumho Tire v. Carmichael, 526 U.S. 137 (1999).) The court becomes a “gatekeeper” previewing the evidence for reliability before it goes to the jury. Like experts, informants receive a benefit for their testimony, and both their reliability and credibility should first be examined by a neutral magistrate.

At a hearing, the court could assess the “informant’s ‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ . . . in determining the value of his report” as the US Supreme Court held was appropriate when determining probable cause. (Illinois v. Gates, 462 U.S. 213, 230 (1983).) It is the type of decision judges make all the time when evaluating warrants. Illinois requires such a hearing. (725 Ill. Comp. Stat. Ann. 5/115-21 (“If the prosecution fails to show by a preponderance of the evidence that the informant’s testimony is reliable, the court shall not allow the testimony to be heard at trial.”).)

Corroboration can be enforced by laws, such as those that currently exist in a minority of jurisdictions. Laws should require proof that the offense took place and that there is evidence linking the defendant to the offense, and proof of each should exist independently of the informant’s testimony. Informants should not be allowed to corroborate one another.

Even without laws requiring corroboration, it should be made part of best practices. It is in the prosecution’s interest to corroborate informant testimony. Cases improve for the prosecution when witness testimony is corroborated. Despite what is a common belief, even persons who regularly evaluate the credibility of others—like judges, prosecutors, and police—are statistically little better than a coin flip at sorting out truth from fiction.

Instructions can make the jury wary about informant testimony. They can be provided directly before the witness testifies in the form of a limiting instruction, and they can be included in the final charge. For example:

You should keep in mind that such testimony is always to be received with caution and weighed with great care. You should never convict a defendant upon the unsupported testimony of an alleged [accomplice/informant] unless you believe that testimony beyond a reasonable doubt.

(Pattern Crim. Jury Instr. 5th Cir. 1.14, 1.15 (2015).) This would include a person testifying for immunity or a reduced sentence or one who has been compensated for his testimony. (United States v. Cervantes-Pacheco, 826 F.2d 310, 316 (5th Cir. 1987).)

However, instructions, without sufficient discovery and gate keeping by the court, are not enough protection against uncorroborated informant testimony. They typically only urge caution and allow the jury to rely upon such testimony under the same standard for conviction by all other evidence in a criminal case.

Conclusion

Informants are a necessary evil. The government cannot simply ignore admissible probative evidence supporting its case. However, the potential for abuse is great, and all possible protections must be applied. That means providing full disclosure to the defense about the motivations of testifying informants, requiring that their testimony be corroborated by other credible evidence (and not just other informants), having the judge make a finding of reliability before an informant testifies, and giving the jury instructions cautioning them about the potential unreliability of testimony given in exchange for a benefit. All are possible, and the cost of inaction is great.