Incentivized Witnesses: A Threat to Prosecutorial Integrity?

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On December 18, 2014, Rickey Dale Wyatt became the 325^th person in the United States exonerated through post-conviction DNA testing.  Wyatt had been charged and convicted of aggravated rape stemming from an incident occurring on November 1, 1980.  In 1981, he was sentenced to ninety-nine years in prison.  Wyatt initially secured his release in 2012 through the assistance of the Innocence Project, in cooperation with the Dallas County District Attorney’s Conviction Integrity Unit.  This unit, started in 2006 under then-District Attorney Craig Watkins, was the first of its kind in the United States. Today, the Center for Prosecutorial Integrity credits these such units with “forging a new model of justice,” and the organization’s front page contains links to sixteen units in thirteen states, the most recently created in Pima County, Arizona.  In light of the creation of these units, perhaps it is a good time to examine the role prosecutorial practices play within the overall scheme of prosecutorial integrity.  More particularly, this blog post will focus on the use of informants and incentivized witnesses in the prosecutorial scheme.

At first glance, the potential issues with the use of informants, especially incentivized informants, can be fairly obvious:  it is likely that few people would be surprised to hear that an incentivized informant may mislead or lie in hopes of receiving the incentive.  The Innocence Project credits “informants and snitches” as one of the common causes of wrongful conviction, which credits such witnesses as a factor in eighteen percent of wrongful conviction cases overturned by DNA testing.  Often, the Innocence Project states, “statements from people with incentives to testify—particularly incentives that are not disclosed to the jury—are the central evidence in convicting an innocent person.”  In 2005, the Northwestern University School of Law’s Center on Wrongful Convictions published the results of a survey which indicated that “snitch testimony is the leading cause of wrongful convictions in capital cases.”  At the time of the survey, there had been 111 death row exonerations since the 1970s, with incentivized witnesses (“snitches”) playing a major role in 51 of those cases.  The survey indicates that the most common of these incentivized witnesses were jailhouse informants promised leniency in their cases or others who may have an incentive to lie.

Some states appear to attempt to counteract the effects of incentivization through jury instructions which specifically address the use of informant testimony.  By way of example, Connecticut has a jury instruction which defines an informant as “someone who is currently incarcerated or is awaiting trial for some crime other than the crime involved in this case and who obtains information from the defendant regarding the crime in this case and agrees to testify for the state.”  The instruction allows the jury to consider a number of factors, including “any benefits received in exchange for the testimony.”  Maryland also has a similar jury instruction focusing on informants who are promised leniency or personal advantage.[1]  Unlike the Connecticut instruction, the Maryland instruction simply advises the jury to weigh an incentivized informant’s testimony “with greater care than the testimony of an ordinary witness.”[2]  However, these jury instructions can’t help but beg the question:  is this enough?  While the use of informants is a “recognized means of law enforcement,”[3] even with jury instructions there is always a risk that the informant may lie for their personal gain and that those lies might result in a wrongful conviction. 

Prosecutors should be very careful in their use of incentivized witnesses in cases with little solid evidence upon which to rely.  Incentivized witnesses are just that:  individuals who differ from “traditional” witnesses in that they have a much more personal stake in how their testimony pans out.  For these individuals it could mean a reduced sentence, lesser charges, or release.  Prosecutorial integrity should be foremost in any plan which involves utilizing informants.

Trevor Addie
Blog Editor, Criminal Law Practitioner

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[1] See 1-2 MD Criminal Jury Instructions and Commentary § 2.27.

[2] Id.

[3] Id.