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The Problems with Snitches

For those of you reading this who may not work in the criminal justice system, snitches are people who provide information to police and prosecutors for a reward, usually cash or some level of leniency from the prosecution, or even just a hope for leniency in the future.  Snitches are almost always criminals themselves.

I am writing this post with mixed emotions.  As a defender, I have had to face and I am still coming to terms with both sides of the issue of snitching in our system of criminal justice.  I have represented clients who act as "snitches," and I have represented clients who are prosecuted and sometimes convicted based on the testimony of "snitches."  

Tony Serra, a man considered by many defenders (including myself and my law partner Russ Hunt Sr.) as one of the greatest criminal defense lawyers of our time, has for decades completely rejected and refused to participate in the "snitch system."  In Paulette Frankl's book, Lust for Justice, which documents the life and cases of Tony Serra, she quotes Serra's position on snitches, stating: "We're creating a judicial system that's predicated on paid informants, who are paid in the currency of liberty, the most precious commodity that exists.  And dare we that's injustice?  Dare we say that's the underpinning, the foundation for a just system?  No!  It's an utter disgrace.  It's a mockery!"  

Judge Paul Kelly Jr. of the U.S. Court of Appeals for the Tenth Circuit has said "if justice is perverted when a criminal defendant seeks to buy testimony from a witness, it is no less perverted when the government does so...The judicial process is tainted and justice is cheapened when factual testimony is purchased, whether with leniency or money."  United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998).

I admire Serra and Judge Kelly's idealism, but in a place like Central Texas, I do not believe a complete rejection of the "snitch" approach is realistic, nor is it always in the best interest of my clients (which is always my main concern).  As a defender, while greater systematic problems often plague me at night when I reflect on the brokenness of our criminal justice system, by signing up to do this work, I have dedicated myself to choosing what is best for MY particular client in THAT particular moment. The way I see it, so long as the BEST option for my client is honest and ethical under the law, I will always choose to do what is best for that client because I believe that is my job.  

That being said, I do see huge problems in the "snitch system," and I do think prosecutors, police, and even defense attorneys need to more judiciously exercise the way the snitch is used in the system.  

I cannot deny that utilizing cooperating witnesses in order to obtain evidence of criminal activity can be an important tool for police and prosecutors.  At the same time, the motive to fabricate testimony that is inherent in this type of system, where witnesses often have very little to lose and everything to gain, is deeply concerning.  At times, "the snitch problem" has even caused me to lose faith in the reliability and fair administration of justice in our system. 

A 2005 report by the Center on Wrongful Convictions at Northwestern University School of Law found that prosecutions based on the testimony of a "snitch" are the leading cause of wrongful convictions in capital cases.  Center on Wrongful Convictions, Northwestern University School of Law, The Snitch System: How Snitch Testimony Sent Randy Steidl and other Innocent Americans to Death Row, Center on Wrongful Convictions, 2005.  

And, as a report by the Justice Project discusses, "The problems that arise when prosecutions rely on cooperating witnesses vary with the type of benefit conferred upon a witness in exchange for his or her testimony.  Compensation of 'jailhouse snitches' who provide incriminating testimony against a suspect, frequently one with whom they share a jail or prison cell, often takes the form of a favorable plea to a lesser charge or a reduction in sentence."  The Justice Project, Jailhouse Snitch Testimony: A Policy Review, 2007.   

The problem I have often encountered in some Texas state criminal cases centers around the issue of a prosecutor calling a "jailhouse snitch" as a witness and then claiming the person is getting "no benefit" for testifying against my client.  

A snitch witness in this situation often provides incriminating information about my client and then the prosecutor often has the snitch tell the jury they've "received no formal plea bargain or benefit for providing this information."  I take issue with this approach.  I think it's dishonest and misleading to jurors.  As defenders, it is often our job to expose the snitch's underlying motivations through vigorous cross-examination.  But sometimes an aggressive cross-examination is not enough when the snitch and prosecutor still claim "he's getting nothing for providing the testimony."  When the prosecutor gets up and argues, "he's just doing it because it's the right thing to do," I always think to myself, "yeah, the snitch is doing the right thing to save his own a$#!" 

THIS is one of the problems we see in the snitch system.  The snitch system often operates under implicit or perceived promises...and "even absent a formal understanding the reward inevitably comes--because failing to deliver in one case would chill prospective future snitches." Center on Wrongful Convictions, Northwestern University School of Law, The Snitch System: How Snitch Testimony Sent Randy Steidl and other Innocent Americans to Death RowCenter on Wrongful Convictions, 2005.  

In Let's Get Free: A Hip Hop Theory of Justice, Paul Butler, a professor at George Washington University Law School, and a former Assistant United States Attorney writes: "Nontransparency is one of the biggest problems with law enforcement's use of snitches."  Butler also states that "snitches must be used judiciously. The widespread and unregulated use of snitches impedes community safety.  It makes the evidence in criminal cases unreliable.  It permits police-santioned criminal activity.  It causes lazy, inefficient policing.  And it turns neighbor against neighbor in a way that undermines the social fabric."  

So what can be done to change one of the many broken parts of our criminal justice system?  In a perfect world, we would just not use the testimony of snitches, but I do not believe that is practical or possible in our current system. However, I have to believe that reform is possible.  

The Justice Project has suggested several practical changes to help ensure that the use of cooperating witnesses does not undermine fairness and accuracy in criminal trials:

(1) Requiring corroboration of the facts to which a snitch testifies;

(2) Pretrial disclosures of the identify of snitches or informants to defense attorneys well in advance of trial;

(3) Reliability hearings on snitch testimony  (pretrial), which would allow for snitches to be vetted and scrutinized just like we do with our experts in the legal system; 

(4) Cautionary jury instructions on snitch type of testimony. 

As I've said before, and as I'm sure I will write many times again, we have many problems in our criminal justice system.  I have to believe that change and reform are still possible, one person and one voice at a time.  Anyone can be a voice of change.  If you are a lawyer or law enforcement person working in the system, I would encourage you to think carefully about how we use cooperating witnesses or "snitches" in a more careful way.  If you serve as a juror, I would encourage you to use the highest level of scrutiny with these types of witnesses, and don't just take their word or the prosecutor's word for it - another person's life depends on it.  

Change does not roll in on the wheels of inevitability, but comes through continuous struggle. And so we must straighten our backs and work for our freedom. A man can't ride you unless your back is bent.

- Martin Luther King Jr. - 

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(Here I am, probably looking less than enthusiastic about snitch testimony) 

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