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July 15, 2020 Criminal Justice Matters

Trolling for Informants inside Detention Facilities

J. Vincent Aprile II

As a result of Massiah v. United States, 377 U.S. 201 (1964), after a judicial proceeding has been commenced against an accused and the right to counsel under the Sixth Amendment has attached, no statement deliberately elicited by the government from the accused in the absence of counsel is admissible at the accused’s trial. This in effect made unconstitutional the practice of the government recruiting an inmate confined in the same detention facility with an accused awaiting trial to elicit a confession from the accused in a supposed friendly conversation.

Once this law enforcement tactic was banned, some agents of the government, such as investigators and prosecutors, turned to a new method to obtain this type of information. Once an accused had been placed in pretrial confinement, law enforcement would wait until the accused had been locked up long enough to have interacted with other inmates in the facility to begin to search for an inmate to whom the accused may have made a partial or complete confession to the charged crimes. This in and of itself would be constitutional. Assuming the inmate who heard the accused’s confession was, at that time, not serving as a surrogate for the government, there would be no violation by the prosecution of the accused’s federal constitutional right to counsel.

But this investigative strategy may generate an insidiously unconstitutional variant. Law enforcement agents and prosecutors can covertly reach out to prisoners who at one time or another had been in close contact with the accused during pretrial confinement and let it be known the authorities are interested in any type of admission or confession the accused had made regarding the charged offenses. In this situation, an inmate could easily assume, even without an express promise, that providing such inculpatory information to the prosecution could generate substantial benefits for the informer with regard to his or her pending charge or sentence. The inmate informant often will be aware of benefits other inmates have received for providing the government with a confession by an inmate awaiting trial in a detention facility. Jailhouse scuttlebutt can also educate the informant not to even ask about what benefits will be conferred by the government for testifying to the accused’s confession because such a request, if known, would generate an avenue of impeachment for the defense to use at trial. In such a situation, the opportunity and possibility for an inmate to lie about the accused confessing are substantial and potentially beneficial to the informant.

An untruthful jail informant may read up on the accused’s charged offenses and obtain enough information in the public domain to make it appear the informant had discussed the crime with the accused. A familiarity with the details of the accused’s alleged crimes constitutes the first step in establishing the informant’s credentials. In some situations, the investigator or the prosecutor who is aware of the deficiencies in the government’s case may ask the informant specific open-ended questions, seeking only to fill gaps in the prosecution’s case. The questioner may not care what information the informant offers as the government now has a testifying source able to place those words in the accused’s mouth. Despite the informant’s likely vulnerability to attacks on his or her credibility, the prosecution will be able to establish beyond a doubt the informant and the accused were together in circumstances where this alleged conversation or series of conversations could have occurred, giving a jury a factual basis to believe the informant. And the prosecution at trial can voice the bromide that in a jail, who would the accused talk with other than another criminal—certainly not the staff of the detention facility—in an endeavor to weaken the defense impeachment attempts on the informant based on that inmate’s criminal record and, if pertinent, previous history as an informant.

In many instances, no physical record will exist of the words used to selectively reach out to certain inmates confined with the accused. Similarly, there often will be no recordings, whether audio, video, or stenographic, of the meetings between the informant and his or her government contacts, such as jailer, law enforcement agent, or prosecutor. Without this type of documentation, the defense is at a distinct disadvantage recreating a factual account of the recruitment of the informant and the evolution of the informant’s testimony. This leaves the prosecution witnesses free to control the narrative of exactly how the government obtained the informant’s testimony regarding the accused’s alleged confession.

To many jurors, unaware of how jailhouse informants often operate, the accused deciding to confide in a fellow prisoner may seem perfectly reasonable, particularly when a completely sanitized version of the acquisition of the informant’s testimony is presented in the prosecution’s case-in-chief. The defense’s ability to mount an effective cross-examination may be hindered by the lack of objective records of the recruitment of the informant, the evolution of the informant’s testimony, and the unspoken benefits the informant expects to receive for that testimony.

In this approach to the use of a jailhouse informant, there is a potential for government mistakes as well as prosecutorial misconduct. Government agents seeking an inmate to whom the accused may have made an admission or a confession during their contacts within the facility should record their initial questioning with each potential informant so a jury will know how and why a particular informant was selected. Each meeting with an informant to obtain the extent of what the accused allegedly confessed also should be recorded. This would enable a jury to determine whether the informant volunteered the specific details or was force-fed information by leading questions and statements voiced by government agents. That type of recording also would assist in determining whether the informant was implicitly signaling an expectation of a benefit or whether the interrogator was subtly promoting that possibility.

The prosecution should have investigated whether the informant has a previous history of informing in criminal cases as well as inmate disciplinary actions. Some prosecution offices have created jailhouse informant registries to track for each informant factors such as the number and types of instances of informing; the informant’s record of reliability; instances of lying or recanting; benefits promised, given, or requested; and the informant’s criminal history. A competent prosecutor would want that information on any jailhouse informant being consider as a prosecution witness. Such a database would benefit the prosecution. Due to discovery obligations and the federal constitutional duty to disclose impeachment evidence, these data on an individual informant should be a required disclosure to the defense.

This type of tracking may expose a pattern by a given prosecutor or prosecution office of trolling for jailhouse informants who can provide an accused’s complete or partial confession to fill in gaps in the evidence against the accused. When this type of repeated conduct by a prosecutor or an office is uncovered, it should be a red flag that the jailhouse informant route is likely being improperly manipulated to create unreliable prosecution informant evidence.

Some reforms have been enacted in various state courts, and others may be on the horizon. Pretrial reliability hearings allow trial court judges to assess the reliability of the jailhouse informant and his or her testimony before a trial commences. The same factors that the defense would use before a jury to challenge the informant’s reliability would be raised at a pretrial reliability hearing, with more latitude due to the absence of the jury. In such a setting, a judge can assess the reliability and credibility of the jailhouse informant as well as the testimony to be presented. The judge can rule the testimony inadmissible on its face or because its probative value is substantially outweighed by the undue prejudice generated. The same effect may be achieved in jurisdictions without pretrial reliability hearings by a motion in limine for a pretrial ruling assessing the admissibility of the informant’s testimony based on probative value versus prejudicial impact.

Due to the probability that jurors will lack both experience and education with regard to prison life and jailhouse informants, these types of cases should be fertile ground for the defense use of a teaching expert to educate the jury about such matters as the culture of confinement, the inmates’ common expectation of the potential benefits of being an informant, and how informants are recruited by the government. The teaching expert does not evaluate the informant in the case and testify about that individual’s credibility, but only exposes the jury to the realities of confinement and jailhouse informants.

Another method of educating the jury with regard to a jailhouse informant is a cautionary instruction or admonition. The instruction details the reasons why the jury should examine and weigh the informant’s testimony with caution and care, such as whether the informant has received or hopes to receive any benefit in exchange for testifying, whether the informant’s testimony is corroborated by any other evidence, and the informant’s history of obtaining benefits for informing in other matters.

There is nothing unethical, illegal, or unconstitutional about the proper and legitimate use by law enforcement agents and prosecutors of jailhouse informants who have witnessed an accused’s confession. But there is no doubt that jailhouse informants should be viewed with caution by prosecutors, vetted extensively, and required to provide the details of what they allegedly heard without being coaxed or spoon-fed information by the government. Similarly, criminal defense attorneys must be wary of jailhouse informants and pursue the avenues discussed above to challenge the credibility of those informants who may be lying in an effort to benefit only themselves while damning criminal defendants.

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J. Vincent Aprile II

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J. Vincent Aprile II retired after 30 years as a public defender and joined Lynch, Cox, Gilman & Goodman, PSC, in Louisville, Kentucky, where he specializes in criminal law, employment law, and litigation.