Unnecessary Evil - Solution: Ensure Reliability

ENSURE RELIABILITY >>

In virtually every court across the nation, all it takes is the uncorroborated word of an informant to charge someone with a crime. To make matters worse, the person charged must decide whether to accept a plea deal or go to trial without knowing anything about the reliability of the informant.

> SOLUTIONS

> Access to Innocence Information Pre-Plea Bargain
> Informant Reliability Hearings

The sad truth is that many people – especially those without the money to pay for high-priced legal representation – are pressured into pleading guilty under the threat of facing excessively long prison sentences for relatively minor crimes. In these scenarios, even innocent defendants may plead guilty before trial because they lack access to critical information about the alleged informant in the case, such as:

• what kind of cash payments the informant received for cooperation
• what kind of leniency in sentencing the informant received in exchange for cooperation
• what kind of crimes the informant received leniency for in exchange for cooperation
• the informant’s track record of providing truthful – or fraudulent – testimony
• the details of how the informant gathered the information
• whether the informant’s information has been corroborated through other sources

Under these circumstances, it takes a very courageous person with significant financial resources to take the gamble of refusing to plead guilty and exercise their right to a jury trial. But the ability to exercise these rights should not fall only to the lucky few with money to pay a competent lawyer – these rights are guaranteed to everyone, and the responsibility to ensure them falls on our criminal justice system.

Each and every time a person is forced to accept a plea deal without access to critical evidence that could prove their innocence, our justice system loses integrity and fails to live up to its name.

> REAL WORLD IMPACT

Regina Kelly and 26 other young African Americans were arrested in a drug bust in Hearne, Texas, based solely on the word of one unreliable informant. Regina, a mother of four, was at work when police officers took her into custody without telling her why. She took action to prohibit police from basing arrests on such flimsy evidence. Watch the full story of Hearne, Texas >>

The Center for Wrongful Convictions found that lying informants are the leading case of wrongful convictions in U.S. death-penalty cases.
Read more >>

> SOLUTIONS

Prosecutors should be required to provide defendants with critical information about the informant in the case prior to the entry of a guilty plea. These materials would include:

• the informant’s identity
• the informant’s criminal record
• the benefits obtained or promised to the informant in connection with this and any previous cases
• the informant’s history of working with law enforcement
• prior instances in which the informant lied, recanted, or otherwise provided false information

Judges should be required to hold pre-plea and/or pre-trial reliability hearings. If the government intends to use the testimony of an informant who was paid or who received leniency in exchange for cooperating, the government would be required to establish the informant’s reliability to a judge.

If no hearing is held, the judge should be required to make a formal reliability determination based on written submissions of both the defense and prosecution. If disclosure of a particular piece of information about the informant presents a substantial threat to a witness or to an investigation, the court can issue a protective order to shield that information from the defendant, but not from defense counsel.

Reliability hearings would examine:

• the informant’s incentive to lie
• the informant’s history of escaping punishment through working as an informant
• the existence – or lack – of corroborating evidence
• the government’s efforts to validate the truthfulness of the informant’s information or testimony