The decision to use evidence provided by an informant should be made on a continuing basis, after careful scrutiny of such information. Such scrutiny should be documented, and should include an assessment of:
- (a) the reliability of the information provided, determined by the nature of information in question, the type of crime, the specificity of the information, and the extent to which the information is corroborated; and
- (b) the credibility of the informant, evaluated based on the circumstances under which the information was provided; the incentives provided to the informant; the informant’s prior relationship with law-enforcement agencies, and prior criminal history; the informant’s membership in a vulnerable population; and any other information bearing on reliability.
Comment:
a. Reliability review. All too frequently, information provided by informants has been relied on without ensuring that the information is reliable. Particularly when informants provide information about ongoing criminal enterprises, it may be difficult for law enforcement to corroborate such evidence. That inherent challenge makes it all the more important that agencies conduct due diligence regarding both the information provided and the sources of that information. Thus, the decision to rely on evidence provided by an informant during an investigation should be made only after due diligence regarding both the informant (see § 12.02) and the evidence provided by the informant. The degree of evaluation required should depend on the type of information provided and the purposes to which it is put. Informal reliance on a lead that can be corroborated promptly will not require the same degree of scrutiny as more substantial evidence, the truth of which cannot easily be verified. As a result, efforts should be made to corroborate independently the reliability of information shared by an informant. The information relied upon by an agency to assess and determine reliability should itself be documented. See § 12.04 (regarding documentation of informant information).
b. Information reliability. In assessing the reliability of informant-provided information, investigators should look to the specificity of that information and whether the information can be corroborated, as well as the circumstances under which the information was obtained. In order to do so, investigators should evaluate the extent to which the information contains inside details that could only be known and relayed by a person involved with the alleged offense. If the information can be obtained from a source other than the defendant—such as the media, court records, community members, or other inmates—then an informant may be relaying information learned in some way other than from the supposed target. This risk is greatest around supposed inculpatory statements by a target, offered by an informant in order to obtain leniency.
c. Noncontamination of evidence. As part of reliability review, law-enforcement agencies should ensure that investigative information is not disclosed to informants. Disclosure of such investigative information can compromise a reliability review, making it difficult to ascertain whether the informant is providing valuable or useful information or simply is parroting back information disclosed by law enforcement.
d. Credibility of the informant. An informant’s credibility should be assessed in an ongoing fashion. A number of considerations are relevant to evaluating the credibility of an informant, including: the circumstances under which the informant initially provided information to an officer; any benefits or incentives the informant is receiving in exchange for cooperation; any prior testimony or cooperation by the informant, including any prior recantations; whether the informant remains involved in criminal activity; and the seriousness of the informant’s prior or ongoing criminal conduct. It also may be relevant whether the informant suffers from substance-abuse issues, mental-health issues, or other challenges that would call the informant’s reliability or suitability into question. Any information relevant to credibility must be documented and disclosed to legal actors. See § 12.04.
e. Incarcerated informants. As is well understood, informants who are incarcerated—or who are facing incarceration—present particular reliability concerns given their incentive to avoid incarceration. Although this may be a matter of degree as much as kind regarding informant incentives, agencies should consider carefully whether such “jailhouse” informants ever should be used. If a law-enforcement agency does decide to use information provided by an incarcerated informant, it should perform a more stringent review of the reliability of that information.
Reporters’ Notes
The use of informants raises a range of reliability concerns, given that informants by definition receive covert benefits that incentivize them to provide information, but not necessarily to provide accurate information. Informants have a wide range of motivations to lie or provide unreliable evidence. As one scholar explains:
Informant lies come in several forms. A jailhouse informant may fabricate a fellow prisoner’s admission. Accomplices may admit to participating in a crime but minimize their own involvement while inflating the roles played by others. Some may admit guilt but fabricate the involvement of others. Others may lie about the identity of participants out of loyalty or fear or to conform their stories to the narratives law enforcement already constructed.
Jessica A. Roth, Informant Witnesses and the Risk of Wrongful Convictions, 53 Am. Crim. L. Rev. 737, 765-766 (2016). For these reasons, even if the decision is made, after vetting, to rely on an informant, ongoing review of the reliability of their statements should be conducted.
The situation is complicated because agencies often rely on informants when they lack access to more direct or reliable sources of information. Clifford S. Zimmerman, Toward a New Vision of Informants: A History of Abuses and Suggestions for Reform, 22 Hastings Const. L.Q. 81, 83 (1994) (noting informants particularly used to investigate “invisible crimes” in which there is no victim or the victim is unlikely to report). They also are relied upon to obtain types of evidence that raise special reliability concerns, such as “oral communications by a defendant or a coconspirator.” Roth, supra. “Testimony about such admissions is suspect not only because of the accomplice witness’ bias and the opportunity for contamination, . . . but also because of the nature of the testimony itself, which relies on the cooperator’s memory of what the defendant said.” Id. “[Another] category of particularly troubling evidence that accomplice witnesses frequently offer is background ‘other act’ evidence.” Id. at 771. In addition, informants in federal cases often are used to establish drug amounts that otherwise are difficult to corroborate. Ellen Yaroshefsky, Cooperation with Federal Prosecutors: Experiences of Truth Telling and Embellishment, 68 Fordham L. Rev. 917, 936 (1999) (documenting prosecutorial fears that informant drug numbers are “fictitious”).
There is ample evidence that informant have provided false evidence, leading to false arrests and wrongful convictions. Alexandra Natapoff, Beyond Unreliable: How Snitches Contribute to Wrongful Convictions, 37 Golden Gate U. L. Rev. 107, 122 (2006); Jessica A. Roth, Informant Witnesses and the Risk of Wrongful Convictions, 53 Am. Crim. L. Rev. 737, 743-744 (2016); Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (2011). False convictions due to the use of informants have occurred in a wide range of high-profile cases, including in capital cases. Clifford S. Zimmerman, Toward a New Vision of Informants, 22 Hast. C.L.Q. 81, 91-95 (1994); Nw. Univ. Sch. of Law, Ctr. on Wrongful Convictions, The Snitch System: How Snitch Testimony Sent 51 Innocent Americans to Death Row (2005). The threat of wrongful conviction may be heightened for people with prior criminal records or for those who are housed in jails. Robert P. Mosteller, The Special Threat of Informants to the Innocent Who Are Not Innocents: Producing “First Drafts,” Recording Incentives, and Taking A Fresh Look at the Evidence, 6 Ohio St. J. Crim. L. 519, 523 (2009).
The use of jailhouse informants has attracted special attention for their role in wrongful convictions, particular in murder and death-penalty cases. Myrna S. Raeder, See No Evil: Wrongful Convictions and the Prosecutorial Ethics of Offering Testimony by Jailhouse Informants and Dishonest Experts, 76 Fordham L. Rev. 1413, 1419 (2007) (“The truthfulness of jailhouse informants is permanently suspect, unless the conversation with the defendant is recorded, and the confession actually captured on tape.”); Samuel R. Gross et al., Exonerations in the United States 1989 Through 2003, 95 J. Crim. L. & Criminology 523, 543-544 (2005). One well known jailhouse-informant scandal involved the “unconstitutional use of informants in Orange County’s jails.” James Queally, State Ends Four-Year Investigation into O.C. Jail Snitch Scandal, L.A. Times (Apr. 19, 2019, 8:02 PM). The state investigation into practices in Orange County, California, revealed that its “sheriff’s deputies had been housing informants near high-profile defendants to obtain confessions and elicit other information, which violated [the defendants’] constitutional right to have an attorney present.” Id. The U.S. Department of Justice also investigated the Orange County Sherriff’s Department. Press Release, U.S. Dep’t of Just., Off. Pub. Affairs, Justice Department Opens Investigation of Orange County, California, District Attorney’s Office and Sherriff’s Department (Dec. 15, 2016). Following the Orange County scandal, “[s]everal states [ ] moved to toughen regulations on the use of [jailhouse] informants . . . .” Dave Collins, Lying Prisoners: New Laws Crack Down on Jailhouse Informants, Associated Press (Sept. 14, 2019).
Law-enforcement officials’ use of informants who are treated as confidential also can raise reliability concerns regarding whether they have been vetted by others within an agency, or even whether they actually exist. In some jurisdictions, the bulk of search-warrant applications have been based on confidential informants. Alexandra Natapoff, Snitching: The Institutional and Communal Consequences, 73 U. Cin. L. Rev. 645, 657 & nn.56-57 (2004). In 2019, the city of Lowell, Massachusetts, settled a federal civil lawsuit brought by three individuals arrested for drug-trafficking that claimed a “former narcotics detective failed to properly vet confidential informants who may have planted drug evidence.” Robert Mills & Lauren Peterson, City of Lowell to Settle Confidential Informant Lawsuit for $750G, Sun, July 11, 2019.
Reliability review. In order to satisfy constitutional obligations regarding disclosure of potential impeachment and exculpatory evidence, and to ensure the reliability of informant-provided information, both informants and the information they provide should be vetted with a degree of care that is proportional to the degree of law-enforcement engagement with the informant and the use to which the information is put. By vetting the reliability of information, agencies can ensure that investigations rely on sound information long before any pretrial judicial review or criminal trial occurs. However, informal information or preliminary use of informant information in the form of a tip or a lead properly may be subject to less vetting and reliability review. See, e.g., Alabama v. White, 496 U.S. 325, 328 (1990) (“[a]lthough it is a close case . . . under the totality of the circumstances the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigatory stop of [the] car”). Under these Principles, anonymous tipsters are not considered informants, because they receive a publicly announced benefit, and not a covert one. However, the U.S. Supreme Court’s rulings regarding anonymous tips recognize a principle that also is relevant for informants: information must be assessed on a continuum regarding the reliability of the source and the information provided, including whether any of its details can be corroborated. Florida v. J.L., 529 U.S. 266, 270 (2000). In the context of informant evidence, when law-enforcement officials conduct reliability reviews, they should be doing so not just to obtain the legally required reasonable suspicion or probable cause, or to secure evidence of guilt; they also should be assessing the value and reliability of both the source and the particular information provided.
A growing number of jurisdictions have adopted rules requiring the documentation and disclosure of information bearing upon the reliability of informants, as well as in-court review of their reliability. See Cal. Penal Code § 1111.5 (stating that a jury or judge may not convict based on uncorroborated testimony of an in-custody informant); Cal. Penal Code § 1127a (providing model jury instructions concerning incentivized witnesses); Conn. Gen. Stat. Ann. § 54-86o-p (requiring data collection, tracking, and reliability hearings for jailhouse informants); 2019 Ct. P.A. 19-131 (providing for the disclosure of whether or not the prosecutor intends to introduce testimony of a jailhouse witness, requiring a judge to conduct a pretrial hearing regarding reliability of such witnesses, and requiring prosecutors to track the use of jailhouse-witness testimony); Fla. R. Crim. P. 3.220(b)(1)(M) (requiring the state to disclose material information affecting the credibility of an informant, whether in or out of custody, including any incentives for cooperation); 725 Ill. Comp. Stat. § 5/115-21 (2003) (requiring reliability hearings for in-custody informants); Neb. Rev. Stat. Ann § 29-4701-06 (requiring each prosecutors’ office to maintain records of any case in which informant statement or testimony is used and disclose relevant information to the defense concerning the testimony or statement by a jailhouse informant); Tex. Code Crim. Pro. art. 2.024 (requiring tracking of use of testimony by informants in custody and any benefits offered or provided by such a person); Tex. Code Crim. Pro. art. 38.075 (requiring corroboration of an in-custody informant’s testimony before it can be used to support a conviction); Tex. Code Crim. Pro. art. 39.14(h-1) (requiring state to disclose information relevant to the credibility of an in-custody informant); Dodd v. State, 993 P.2d 778, 784 (Okla. Crim. App. 2000) (Strubhar, J., concurring) (approving lower-court “reliability hearing”); D’Agostino v. State, 823 P.2d 283 (Nev. 1992) (holding that before “jailhouse incrimination” testimony is admissible, the trial judge must examine whether “the details of the admissions supply a sufficient indicia of reliability”); State v. Charles, 263 P.3d 469 (Utah Ct. App. 2011) (reversing and remanding based on a trial judge’s failure to instruct the jury to weigh informant testimony with greater care); Fla. Jury Instructions, Weighing the Evidence 3.9 (cautioning jurors when evaluating the testimony of informants); Utah CR415 In-Custody Informant Model Jury Instructions.
Reliability-review policies and practices can complement rules that have been adopted for in-court review of informant evidence. For example, Texas law provides that jailhouse-informant testimony may not be used “unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed. Corroboration is not sufficient for the purposes of this article if the corroboration only shows that the offense was committed.” Tex. Code Crim. Pro. art. 38–075 (2009). Illinois requires that courts hold pretrial reliability hearings before jailhouse-informant testimony can be used. 725 Ill. Comp. Stat. Ann. 5/115-21(d) (2019). Agencies should not disclose important law-enforcement information to informants, because doing so can compromise reliability reviews of the information that informants provide. Such disclosures make it difficult to ascertain whether accurate details that an informant reported provide true corroborative information, or whether in fact the informant merely was repeating back details conveyed by law enforcement. Informants have reported that they use information obtained from law enforcement to fabricate evidence, to tailor their stories so as to fit the government’s theory of the case, and to render their narratives more plausible and valuable. See Report of the 1989-1990 Los Angeles Grand Jury: Investigation of the Involvement of Jailhouse Informants in the Criminal Justice System in Los Angeles County (1990); Ellen Yaroshefsky, Cooperation with Federal Prosecutors: Experiences of Truth Telling and Embellishment, 68 Fordham L. Rev. 917, 936 (1999). To be sure, informants also can use information obtained from public records or from others in a custodial or community setting in order to falsely bolster their accounts. The difficulty in assessing the true sources of informant evidence should be considered carefully as part of any reliability review.