Unnecessary Evil - Issues: Require Corroboration

October 25, 2007

Police in most jurisdictions can obtain search warrants and make arrests based on nothing more than the word of a confidential informant whose identity and criminal history is not even revealed to the judge issuing the warrant. This lack of oversight and safeguard mechanisms is a recipe for disaster.

> SOLUTIONS
> Heightened warrant requirements
> Require corroboration of informant testimony

 

The guarantee of the 4th Amendment to the U.S. Constitution that no warrants will be issued without probable cause is at the very heart of our criminal justice system.

Law enforcement can obtain a search warrant by making the boilerplate assertion that "an informant of known reliability" provided information.  This boilerplate language does not give the court enough information to make an informed decision about probable cause, especially when the police are requesting a warrant for an emergency forced-entry raid that will place officers and civilians in life-threatening situations.

Blindly trusting known criminals to tell the truth is absurd and dangerous. Currently, in most jurisdictions all it takes is an informant to point the finger at someone for a warrant to be obtained, an arrest to be made, and a criminal charge to be levied. Failing to require informant testimony to be supplemented with corroborating information, such as having a police officer observe an event from afar or making the informant wear a wire, amounts to handing over our police work to criminals.

> REAL WORLD IMPACT
Kathryn Johnston, a 92-year-old grandmother in Atlanta, Georgia, was shot to death in 2006 by SWAT agents who fabricated an imaginary informant and lied to the court to get a warrant. Watch testimony about her death at Congressional hearings >>
Radley Balko, senior editor at Reason Magazine, reports that faulty informant testimony is at the heart of many of the estimated 40,000 SWAT-style raids that occur every year in the United States. 
Read more >>
> SOLUTIONS

 Judges should only grant warrants based on the word of an informant if specific information is provided, allowing the judge to assess the informant's reliability. This information should include:

 

  • previous applications for warrants based on information provided by the informant
  • the informant’s criminal history and pending charges
  • how many times the informant has worked as an informant in the past
  • previous cases in which a jury found the informant’s testimony to be unbelievable
  • any knowledge that the informant has provided false information in the past
  • how much the informant has been paid, whether in cash or leniency, in this and in past cases

 

If a warrant or search does not comply with these requirements, the evidence gained should be excluded.

 Corroborating evidence of informant testimony should be required in order to secure drug convictions. Such evidence would have to corroborate not only the commission of a drug offense, but also that the defendant committed the crime. Corroborating evidence could come in the form of:

  • a second eyewitness account
  • observation and recording by an undercover police officer or an officer who was stationed so as to observe said event from afar
  • audio recording obtained through a wire worn by the informant
  • video recording that documents the defendant’s commission of the crime

 

Texas passed a law in 2001 requiring corroboration of all informant testimony in order to secure a drug conviction. The enacted law reads:

 

A defendant may not be convicted of an offense under [Texas’ Health and Safety Code, which criminalizes drug activities] on the testimony of a person who is not a licensed peace officer or a special investigator but who is acting covertly on behalf of a law enforcement agency or under the color of law enforcement 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 the commission of the offense.

Representative Shelia Jackson-Lee (D-TX) has introduced a similar bill in Congress that would apply to all state and local agencies that receive federal funding from the Department of Justice. The No More Tulias: Drug Law Enforcement Evidentiary Standards Improvement Act of 2007, H.R. 253, was introduced in the 110th Congress. Rep. Jackson-Lee’s bill would require corroboration of any informant or law enforcement officer’s testimony. It reads in part:

A State shall not receive any amount that would otherwise be allocated to that State from any law enforcement assistance program of the Department of Justice, unless the State (1) does not fund any anti-drug task forces for that fiscal year; or (2) has in effect throughout the State laws that ensure that a person is not convicted of a drug offense unless the fact that a drug offense was committed, and the fact that the person committed that offense, are each supported by evidence other than the eyewitness testimony of a law enforcement officer or an individual acting on behalf of a law enforcement officer.

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