Testimony at a criminal trial can come from many different sources. Police officers, bystanders, family members, friends, and even the alleged victims of crimes can take the stand. Another source is an incarcerated informant, sometimes called a “a snitch” as an insult or street slang. The highest court in Massachusetts recently declared that they will have new process for this testimony.
What is an incarcerated informant?
An incarcerated informant is a witness who was in custody at the time they offered to testify and/or are currently testifying.
An incarcerated informant gives testimony against the accused in a criminal case. The testimony is often an allegation that the defendant made an admission, or that the defendant said or did something showing that they are guilty. Sometimes that alleged admission is direct. For example, a defendant who is incarcerated before his trial might say to another inmate, “I did it.” More often, the alleged admission is circumstantial. It might be alleged that a defendant talked about going to the home of the victim the night a crime took place. This isn’t directly admitting guilt, but it is a fact that could be used to establish identity, or that a person is a perpetrator.
Is testimony from an incarcerated informant reliable?
There are serious concerns that testimony from an incarcerated informant might not be reliable.
One of the “gatekeeping” jobs of a court is to make sure testimony that is presented to a jury is reliable. Juries decide whether testimony is credible or believable, but it is usually the job of judges to ensure that before testimony gets to a jury for evaluation it is reliable, or accurate. A witness might be credible but not reliable. For example, a witness might honestly but mistakenly believe he saw a defendant commit a crime. The witness is credible but his testimony is not reliable because if he actually did not see the defendant commit the crime his testimony cannot be accurate.
There are concerns about the reliability of testimony from an incarcerated witness because of the position an incarcerated witness is in when he testifies. Incarcerated informants have a strong motivation to lie to secure benefits or special treatment. For example, an incarcerated informant might tell a prosecutor that the defendant admitted to the crime that the defendant is charged with. This could be a lie. The incarcerated informant might be motivated to lie because he thinks providing this testimony will help the government win the case against the defendant and he will be rewarded with kinder treatment in his own criminal case.
Moreover, sometimes prosecutors enter into formal agreements with incarcerated informants who offer testimony. These are called cooperation agreements. A cooperation agreement is a deal in which an incarcerated informant offers to provide testimony against the defendant in exchange for the district attorney taking his cooperation into consideration in the incarcerated informant’s criminal case.
There are other reasons an incarcerated informant might lie:
- Fear or Intimidation: An incarcerated informant might lie because he is afraid. He might believe testifying truthfully could lead to retaliation from other inmates.
- Revenge or Bias: An incarcerated informant might lie because he has a grudge against the defendant and wants to retaliate against him.
- Pressure From Law Enforcement: An incarcerated informant might lie because he feels pressured or coerced by law enforcement to provide false testimony.
- Lack of Credibility: An incarcerated informant might simply be a liar with a history of providing false testimony.
An incarcerated informant’s testimony might also be inaccurate due to a mental health problem or substance abuse. Since many inmates suffer from mental health and substance abuse, this is another reliability concern unique to incarcerated informants.
How do courts make sure testimony from an incarcerated informant is reliable?
The Massachusetts Supreme Judicial Court recently decided a case on the role courts in Massachusetts should play in ensuring testimony from an incarcerated informant is reliable.
The defendant, Nickolas Lacrosse, was indicted for murdering his ex-girlfriend. Lacrosse was accused of stabbing her to death in her home after she broke up with him. Lacrosse did not deny that he killed the victim but asserted an insanity defense. He argued that he was not criminally responsible because he was suffering from a form of amnesia at the time.
At the trial, the Commonwealth called two witnesses who were inmates at the same jail Lacrosse was held at before his trial. The inmates testified on direct examination that Lacrosse admitted to them that he committed the crime and that he was going to “play the crazy card” as a defense. It was also alleged that he spoke to them about the murder weapon and hiding it.
On cross examination, Lacrosse’s lawyer questioned the incarcerated informants. They successfully impeached, or challenged the credibility, of the witnesses. For example, one of the defendants admitted that he had lied previously and had memory problems. The defense attorney also addressed a cooperation agreement one of the incarcerated informants entered into to highlight that this witness was biased in favor of the Commonwealth.
At the end of the trial, the jury decided to convict Lacrosse. He appealed and the Massachusetts Supreme Judicial Court took his case. One of his arguments was that neither of the incarcerated informants should have been allowed to testify unless there was a preliminary hearing determining that they were reliable.
The Court acknowledged scientific and legal research showing that testimony from incarcerated witnesses is often unreliable but decided that a hearing was not necessary. The Court concluded that juries could independently evaluate how much weight to give the testimony of incarcerated informants. There was no need for the Court to intervene. The Court ruled, however, that a jury instruction on incarcerated witnesses was necessary.
What does the jury instruction for incarcerated witnesses say?
A jury instruction is a statement on the law that the judge reads to the jury before they deliberate. Jury instructions are usually agreed to before the trial.
The jury instruction on incarcerated informants explains what an incarcerated informant is and tells jurors to examine their testimony with “greater care and caution.” The instruction explains the issues with reliability that incarcerated informants have like the incentive for favorable treatment. It then talks about ways to evaluate the credibility of incarcerated informants. These include asking:
- Is the informant’s testimony confirmed by other evidence?
- Has the informant received a benefit for their testimony?
- Has the informant ever changed their testimony?
- Has the informant testified as an informant before?
In the end, though, the ruling of the Lacrosse case is that it is the job of juries, not judges, to decide on how much to weigh the testimony of an incarcerated informant. This was one of the reasons the Court upheld Lacrosse’s murder conviction.
What role does a criminal defense attorney play with incarcerated witnesses?
The Lacrosse case shows the important role of a criminal defense attorney when an incarcerated informant takes the stand. Criminal defense attorneys cross examine government witnesses. A key aim is to impeach their testimony. Establishing that the testimony of a witness is not credible helps lead a jury to reasonably doubt whether a defendant committed a crime. An effective criminal defense attorney will develop a rigorous cross examination that ensures every reason to doubt the credibility of a witness is investigated. This includes reasons to question the reliability of an incarcerated informant, such as a motivation to lie.
IF YOU OR A LOVED ONE HAVE A CASE INVOLVING AN INCARCERATED INFORMANT, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.
CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.
Related Articles:
