ecause jailhouse informants are so desperate to attain sentence reductions and other benefits, informant testimony is widely regarded as the least reliable testimony in the criminal justice system. When the state offers a benefit in exchange for testimony, whether that benefit is explicit or implied, the incentive for incarcerated individuals to fabricate evidence dramatically increases. Some informants may fabricate testimony in an effort to curry favor with prosecutors apart from any promise or implied benefit.
When the state offers a benefit in exchange for testimony, whether that benefit is explicit or implied, the incentive for incarcerated individuals to fabricate evidence dramatically increases.
The protections currently in place have proven inadequate to safeguard against unreliable testimony by witnesses with powerful incentives to lie. Remarkably, the use of jailhouse informant testimony continues to be largely unregulated by state legislatures or courts despite frequent, documented cases of injustice and instances of wanton abuse. Texas is no exception as no statutes regulating the use of jailhouse informant testimony exist.
About fifteen percent of all DNA exonerations nationally included jailhouse informant testimony. Texas must implement safeguards designed to subject this testimony to more transparency and higher scrutiny. Specifically, Texas should require the following reforms:
- Written pretrial disclosures: Texas should require written pretrial disclosure of all inducements a jailhouse informant may have been given or promised in exchange for testimony, including pay, immunity from prosecution, leniency in prosecution, or other personal advantage, along with the proffered testimony the prosecution seeks to present. In addition, any past cooperation agreements of the informant should be disclosed along with other information bearing on the informant’s credibility. Timely disclosure of this information ensures that defendants can conduct meaningful investigation and cross-examination.
- Pretrial reliability hearings: Texas should follow Illinois in providing for pretrial reliability hearings in cases where the prosecution intends to use informant testimony. In a pretrial reliability hearing, the court performs a “gatekeeper” function where it should be required to determine that the informant’s testimony is sufficiently reliable to be presented to a jury.
- Require corroboration: Texas should adopt corroboration requirements for informant testimony to mitigate the inherent risks presented by witnesses with incentives to lie.
- Cautionary jury instructions: Texas should adopt cautionary jury instructions in all cases where the testimony of a jailhouse informant is used.
Greater scrutiny and transparency of jailhouse informant testimony in Texas will prevent unreliable evidence from being used in the courts and will produce more reliable outcomes in criminal cases.
