Safeguarding Against Unreliable Jailhouse Informant Testimony
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.
Unreliable Jailhouse Informant Testimony is a Demonstrated Cause of Wrongful Convictions
- Jailhouse informants have played a role in 156 proven wrongful convictions in the United States, according to the National Registry of Exonerations, which tracks both DNA and non-DNA exoneration cases.1
- A ground-breaking report on the “snitch system” published by the Center on Wrongful Convictions in 2004 found that incentivized informant witnesses were the leading cause of wrongful convictions in U.S. capital cases.2
What is a Jailhouse Informant?
- In-custody or “jailhouse” informants are detained or incarcerated individuals who provide testimony—usually about how a defendant confessed to a crime— often with the expectation of receiving benefits.
Factors That Can Lead to Unreliable Jailhouse Informant Testimony
Jailhouse informants usually claim to officials that they heard their fellow inmates confess to a crime, and typically expect to be rewarded with leniency or other benefits. It is difficult to believe that people regularly confess to committing serious crimes to someone they just met in a jail cell. From a proven record of wrongful convictions involving jailhouse informants, we have seen that the real or perceived potential for benefits in exchange for testimony or information creates a strong incentive for jailhouse informants to lie.
Prosecutors may offer a jailhouse informant benefits such as:
- Reduced charges in a pending criminal case.
- Sentence reduction.
- Special inmate privileges.
- Assistance to family.
- Monetary payments.
How to Safeguard Against Unreliable Jailhouse Informant Testimony
Pre-trial reliability hearings
At minimum, before allowing for the admissibility of jailhouse informant testimony at trial, the court should make a finding relating to reliability and consider the following factors:
- Complete criminal history of the jailhouse informant.
- Any deal, promise, inducement or benefit that the offering party has or will make in the future to the jailhouse informant.
- Time, place and substance of the accused’s statements allegedly heard by the jailhouse informant, time and place of their disclosure to law enforcement, and the names of all people who were present when the statements were made.
- Whether at any time the jailhouse informant recanted his or her statements and details of the recantation.
- Other cases in which the jailhouse informant provided testimony or information on other inmates and any benefits provided in those cases.
- Other information relevant to credibility.
Tracking & Disclosure Requirements
Prosecutors should be required to track the use of jailhouse informant testimony and any benefits provided to them. This practice will enhance transparency and help prosecutors and law enforcement to assess the reliability and credibility of a jailhouse informant before he or she is used as a witness.
In addition, prosecutors should be required to disclose to the defense prior to relevant hearings and trial-specific impeachment information on jailhouse informant witnesses including: their complete criminal history, benefits offered or implied in exchange for testimony, history of jailhouse informant activities, and any other information related to credibility.
Jurors should be instructed to give closer scrutiny to jailhouse informant testimony and to consider specific factors that may have influenced their testimony such as: benefits offered or provided to them, their criminal history, and their previous jailhouse informant activity.