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August 2, 2011

California enacts new legislation preventing convictions based solely on jailhouse informants

I am pleased to see, as reported in this local article headlined "Law requires corroboration of cellmate's testimony," that California has now finally enacted a prohibition on convictions based solely "on the uncorroborated testimony of an in-custody informant."   Here are the basics, along with a bit of the legislative history:

Testimony by jailhouse informants will no longer be enough to convict criminal defendants in California under hotly contested legislation signed today by Gov. Jerry Brown.

SB687 by Sen. Mark Leno, D-San Francisco, applies to cases in which an inmate, often in exchange for leniency, testifies that a cellmate confessed to a crime. The bill, effective next year, will require prosecutors to corroborate that testimony.

Similar laws are in effect in 17 other states. But Gov. Arnold Schwarzenegger vetoed the same proposal twice at the urging of the California District Attorneys Association, which also opposed Leno's bill.

The prosecutors' group argued that there was no need for such a law, since judges already tell juries to consider an informant's testimony with caution. The association also said a ban on uncorroborated informant testimony would make jailhouse crimes harder to prosecute.

But Leno said informant testimony is often self-serving and unreliable and can lead to convictions of the innocent. Defense lawyers and civil-liberties advocates who supported SB687 were joined by the district attorneys of San Francisco and Los Angeles, who say a requirement of corroboration, already in effect in their offices, actually leads to stronger prosecutions....

The informant measure was one of several proposed by a statewide commission, headed by former Attorney General John Van de Kamp, that the state Senate established in 2004 to look into the causes of wrongful convictions.

Other measures backed by the commission would have required police to tape-record interrogations of violent felony suspects, set guidelines for police lineups and made it easier for wrongfully convicted prisoners to get compensation from the state. Schwarzenegger vetoed those as well.

Fittingly, Alexandra Natapoff at her Snithcing Blog has more about this development in this new post.

August 2, 2011 at 10:53 PM | Permalink

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Comments

Seems like a pretty reasonable piece of legislation. It defines in-custody statements as those made while in a city or county jail, state penal institution, or correctional institution. I would include federal detention centers, halfway houses, and perhaps even residential drug rehabilitation facilities, however.

This line is hilarious: "The prosecutors' group argued that there was no need for such a law, since judges already tell juries to consider an informant's testimony with caution." What a bunch of cut-ups.

Posted by: Anonymous | Aug 2, 2011 11:48:00 PM

This prosecutor argues the law is unnecessary because the law requires that which the jury already demands for such testimony: corroboration.

The reality is that this will change next to nothing.

To anonymous, don't laugh, that requirement of telling the jury to view in custody informant testimony with caution is codified in the California Penal Code.

Posted by: David | Aug 3, 2011 2:18:52 AM

This important new law completely prohibits using a jailhouse snitch to establish a fact unless the prosecution has separate corroboration to support the snitch. True, total prohibition may be irrelevant in counties where prosecutors are already more sophisticated and fair- where prosecutors already do in practice what the law now requires. Nevertheless, in counties like Placer, Lake and San Diego, there is no such restraint, and only outright prohibition will stop the well-documented abuses. It is in these sorts of semi-fascist jurisdictions with lock-em-up overzealous prosecutors that the law will have its intended and crucial effect.

Posted by: Jonah | Aug 3, 2011 3:58:07 AM

Perhaps someone could educate me---is this law even necessary? I am no expert on California criminal law, but I thought it was pretty standard that a conviction resting solely on a confession (either to cops or someone else) was insufficient as a matter of law to sustain a conviction.

Posted by: federalist | Aug 3, 2011 8:42:01 AM

If it weren't for squeezing, intimidating and bribing snitches, the conviction-incarceration system would quickly slow to a crawl.

Posted by: John K | Aug 3, 2011 9:10:20 AM

Does the law throw out "uncorroborated testimony" of a suspect's wife, children, other relatives, etc. providing an alibi who have just as much to gain from lying as a "jailhouse informant?" If not, why not?

I am no lawyer but my understanding is that it is the jury's responsibility to judge ANY witness's voracity. What the writers of this bill and its supporters here are committing is a logical fallacy called a genetic fallacy. I suspect that none of you are willing to commit the same fallacy with a witness providing esculpatory testimony for your client.

Posted by: TarlsQtr | Aug 3, 2011 9:27:02 AM

John K --

"If it weren't for squeezing, intimidating and bribing snitches, the conviction-incarceration system would quickly slow to a crawl."

Would you mind producing documentation for that assertion?

Posted by: Bill Otis | Aug 3, 2011 10:03:44 AM

"John K --

"If it weren't for squeezing, intimidating and bribing snitches, the conviction-incarceration system would quickly slow to a crawl."

Would you mind producing documentation for that assertion?

Posted by: Bill Otis | Aug 3, 2011 10:03:44 AM"

LOL bill how about that case last year that went all the way to the U.S. SUPREME COURT and was heard but not decided before the da's came to the sences or were pressured themselves to caugh up about 12 mill to settle it!

Posted by: rodsmith | Aug 3, 2011 11:37:17 AM

"Does the law throw out 'uncorroborated testimony' of a suspect's wife, children, other relatives, etc. providing an alibi who have just as much to gain from lying as a "jailhouse informant?" If not, why not?"

Because a wife's incentives to risk perjury for the benefit of someone else aren't meaningfully analogous to those of a convicted felon for the benefit of himself. Because the government can create extra inducements and pressures on an informant that have no analogue at all defense-side. And because on cross, the prosecutor will be permitted to fully explore the nature of the family member's expected benefit, while the defense will generally not be permitted to fully explore the nature of the informant's expected benefit.

Posted by: Michael Drake | Aug 3, 2011 1:56:04 PM

federalist~

I think you are referring to what is generally called the corpus delicti rule. That rule is actually a lot narrower than many people realize. The "corroboration" required is incredibly minimal. All the rule means is that the confession cannot be the ONLY evidence of a crime. A common example is that in a murder case, the dead body is sufficient corroboration that a crime has been committed. The actual substance of the confession does not have to be corroborated. To continue my murder hypo, say the murderer for whatever reason said "I shot him" but the cause of death was actually strangulation. That would still be sufficient under the corpus rule. However, it would NOT be sufficient under the new law.

With all of that said, I think juries are sufficiently suspicious of cases based on nothing but jailhouse snitches that this law won't have a big practical effect. I think the one area that it will potentially be troubling is in prosecuting crimes occurring in prison or county jail. There, the only evidence would be a snitch. Even an eye witness would be a fellow inmate under the law as I understand it.

Posted by: dda2b | Aug 3, 2011 2:04:39 PM

Michael Drake stated: "Because a wife's incentives to risk perjury for the benefit of someone else aren't meaningfully analogous to those of a convicted felon for the benefit of himself. Because the government can create extra inducements and pressures on an informant that have no analogue at all defense-side. And because on cross, the prosecutor will be permitted to fully explore the nature of the family member's expected benefit, while the defense will generally not be permitted to fully explore the nature of the informant's expected benefit."

Thanks, Mike, but I believe you are missing my main points. These are that A) Any judicial system will have actors within that are motivated to lie for whatever reason. B) We employ a jury to discern who is credible and who is not. C) The "reasoning" behind the law is based on a fallacy of irrelevance called a genetic fallacy. D) Judging by the responses, defense attorneys want the POSSIBILITY of a conflict of interest erased ONLY when the conflict COULD improve their client's chances of being convicted and NOT when it could damage the same chance, a dishonest and immoral position.

Posted by: TarlsQtr | Aug 3, 2011 2:44:17 PM

lol tarlsqtr i'm with you. in my book a trial is about the truth period!

Posted by: rodsmith | Aug 3, 2011 6:23:30 PM

Federalist:

No, until this bill uncorroborated in custody informant testimony was sufficient as a matter of law, but not to any jury I have ever been in front of.

For a contrast of the way it was handled under California law before the bill look at California Penal Code section 1111 (accomplice testimony requiring corroboration of defendant's involvement) and section 1127a (for in custody informants).

Posted by: David | Aug 3, 2011 8:43:38 PM

TarlsQtr,

Your analogy to the wife's alibi would be more apt if the law was primarily about excluding evidence because of a motive to falsify testimony. But it's more accurately characterized as an insufficiency of the evidence law (similar in motivation, I think, to the corpus delicti doctrine). In fact, the statute doesn't even say that uncorroborated "snitch" evidence must be excluded, but rather that a conviction can't be had solely based on such evidence.

Given that, I think the closest analog for an alibi witness would be that an acquittal cannot be had based solely on testimony of an alibi witness (who is of a class of alibi witnesses that often have motivation to testify falsely, e.g., a spouse). But any rule that prohibits an acquittal is effectively a directed verdict, which is unconstitutional.

Also, even looking at this as an admissibility/reliability issue, I don't see how the lawmakers' reasoning would constitute a genetic fallacy (at least as I understand the term, which admittedly I'd not heard before today).

I do agree with you that generally reliability/credibility is for the jury to decide, but I think it's a different debate entirely regarding whether and when it's appropriate to draw lines regarding sufficiency of the evidence.

Posted by: SJS | Aug 3, 2011 8:49:27 PM

"I believe you are missing my main points."

Well, I addressed the precise question I quoted, and you didn't address any of three distinctions I noted in reply.

Anyway, it's not a "genetic fallacy" to consider a type of evidence suspect because of its source when the source is effectively defined by the institutional context in which that testimony is proffered.

To wit, Franky the Informant's testimony isn't suspect because he is Franky, a known dirtbag; it is suspect because Franky is a government informant, i.e., a person who in practice receives a benefit from the government in exchange for his testimony. So this is not related to the garden variety "motive to lie" (as you put it) defense and government witnesses might have due to their familial relations (to the defendant or to the accuser), professional interests (defense or government experts or investigators) or personal identification with one or the other party to the case.

Posted by: Michael Drake | Aug 4, 2011 12:08:08 AM

This is an extremely well-documented problem of major proportions. Here are a few articles about it if you are interested:

http://www.reason.com/news/show/125449.html

http://www.huffingtonpost.com/john-terzano/two-more-exonerations-str_b_317236.html

http://www.snitching.org/docs/Trading_Lies_for_Freedom.pdf

http://www.snitching.org/docs/Authorities_Go_Fishing.pdf

http://www.floridatoday.com/apps/pbcs.dll/article?AID=20106010318

Posted by: Jonah | Aug 4, 2011 3:36:38 AM

Addendum: I shouldn't have included experts among my examples of typical witness bias. Experts are actually more like informants than the other types of witnesses I mentioned, since they too receive a personal benefit in exchange for their testimony. Of course their testimony also gets special handling and gate-keeping at trial, while at the same time (and unlike informant testimony) there are no practical impediments to the jury's learning the full extent of the benefit the expert receives for his testimony.

Posted by: Michael Drake | Aug 4, 2011 9:18:58 AM

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