Evidence from informants, individuals given incentives to testify, was a contributing factor in 15% of wrongful convictions overturned through DNA testing. A 2004 report on informants found that incentivized testimony was the leading cause of wrongful convictions in capital cases.1 These findings show that informants desperate to save themselves from their own compromised circumstances or to gain some promised reward or advantage tell lies on the witness stand.
Sometimes informants approach law enforcement officials, promising information in exchange for special treatment or monetary rewards. Sometimes law enforcement officials approach the informant, disclosing facts about the case that can be used by the informant to provide false testimony.
A Sample Case
NCIP exoneree Obie Anthony III spent 17 years in prison for a wrongful conviction involving the use of an informant. In 1995, Mr. Anthony was convicted of murder and attempted robbery. There was no physical evidence connecting Anthony to the murder. Prosecutors relied on the testimony of John Jones, a convicted killer and pimp who ran a house of prostitution near the crime scene, and claimed to have seen the shooter. In exchange for his testimony incriminating Anthony, Jones received favorable treatment by the prosecutor on Jones’ own pimping and pandering charge. At trial, when Jones was asked whether he received any benefits for his testimony, Jones perjured himself by saying he was not receiving any benefits. The prosecutor’s office was aware or should have been aware that Jones had presented perjured testimony, but the prosecutor did not inform the court or the defense. Anthony’s conviction was vacated on September 30, 2011 after a finding of false testimony (by informant Jones), ineffective assistance of counsel, and prosecutorial misconduct (for omitting disclosure of the known perjury by informant Jones).
There is currently little oversight of the use of informant testimony. The Innocence Project recommends videotaping informant statements to document the process of collecting those statements and to reduce the likelihood that those statements will be contaminated by outside information.2 Informant statements should also be assessed in pre-trial hearings for reliability, and law enforcement should keep lists of informants so that, before using their testimony, prosecutors and police are aware of informants’ activities. In addition, informant testimony should be corroborated by other evidence connecting the defendant with the crime.
The Orange County, California district attorney’s office has drawn considerable public attention recently for its misuse of jailhouse informants. A special committee of legal experts assigned to assess the problem found that a failure of leadership at the agency was a key factor in the mishandling of jailhouse informants. The committee in its December 2015 report also recommended better monitoring of cases and prosecutor performance measures that emphasize seeking justice over seeking convictions.3
1 Center on Wrongful Convictions. The Snitch System. Chicago, IL: Northwestern University School of Law, 2004. Available at: https://deathpenaltyinfo.org/files/pdf/SnitchSystemBooklet.pdf.
2 See The Use of Incentivized Testimony. Available at: https://www.innocenceproject.org/wp-content/uploads/2016/04/Incentivized-Testimony-Fact-Sheet.pdf.
3 Orange County District Attorney Informant Policies & Practices Evaluation Committee Report, December 30, 2015. Available at: http://documents.latimes.com/orange-county-district-attorney-report/.