It’s a tale as old as time. Someone is arrested and held in jail before trial. Naturally, they’re desperate for a friendly face or a caring voice. They spill their guts to their new friend, giving details of the crime. That “friend” contacts the prosecution offering to turn over those details in exchange for a break on their own sentence.
Using jailhouse informants is legal
Prosecutors often rely on the testimony of jailhouse informants to convict people. Unfortunately, there are strong incentives for jailhouse informants to lie, and they do lie. According to the Innocence Project, as many as one in five people who have been exonerated by DNA evidence were convicted because of lying jailhouse snitches.
When they bring in a jailhouse informant to testify, prosecutors have an ethical and legal duty to ensure they are as truthful as possible. Many prosecutors are themselves skeptical of jailhouse informants, but they point to the many cases that have been resolved using their testimony.
Prosecutors are required by the Constitution to turn over so-called “exculpatory” evidence to the defense. This is, essentially, any evidence that tends to show that the defendant is not guilty or that the evidence against the defendant is untrustworthy. That should include any indication that a jailhouse informant might not be telling the truth.
Unfortunately, around the country there have been many examples where prosecutors did not turn this evidence over. For example, some prosecutors withhold information that the informant is getting a benefit for testifying and what that benefit is. There have also been many examples of jailhouse informants recanting their stories later.
New laws are limiting the use of jailhouse informants
Around the country, there has been a movement to rein in the use of possibly untruthful informants, or at least to determine their credibility before they testify. Two states that have adopted new laws are our neighbors, Illinois and Nebraska.
Lawmakers in Illinois overrode a gubernatorial veto to pass the law in November. Now, judges are required to hold pretrial hearings whenever there will be a jailhouse informant testifying. The hearings are intended to ensure that the informant is credible. That means a judge can exclude the testimony altogether if the informant is not credible.
In Nebraska, prosecutors must now notify the defense of any benefits the informant will receive in exchange for testifying. They must also tell the defense about any other cases in which the informant testified and especially any where they later recanted their testimony.
Similar laws have been passed in Texas, Connecticut, Oklahoma, Florida and other states — mostly requiring disclosures to the defense.
Do you think we need tougher standards in Iowa?