Jailhouse snitch testimony is arguably the single most unreliable type of evidence currently used in criminal trials. Snitches are deeply unreliable witnesses. Many are con artists, congenital liars, and practiced fraudsters. As compensated witnesses, all snitches have deep conflicts of interest. What is worse, jailhouse snitch testimony as a class is not only the least credible type of evidence, but it is also among the most persuasive to jurors because jailhouse informants typically allege to have personally heard defendants confess their guilt to the crimes charged. Introduction of a defendant’s confession, from any source, radically changes the complexion of a case, particularly one lacking other evidence that directly implicates the defendant in the crime. Research studies demonstrate that jurors are simply ill equipped to evaluate the credibility of jailhouse informant testimony and consistently give such testimony far more weight than is due even if they are aware of the incentives jailhouse snitches receive or expect in exchange for their testimony. The prejudicial effect of unreliable jailhouse snitch testimony is magnified by the context in which the evidence is presented to the jury. Jailhouse snitches are States’ witnesses, and the credibility of their testimony is likely substantially bolstered as a result. Prosecutors bolster jailhouse snitch testimony simply by putting them on the witness stand as State’s witnesses, signaling to the jury that the prosecutor believes their testimony is trustworthy. Even in cases in which bolstering crosses the line into the territory of the unethical or improper, and it often does, prosecutors are rarely called out for their misconduct, much less face sanctions. As a result of both implicit and explicit prosecutorial bolstering, jailhouse snitch testimony tends to have an even greater, and potentially more prejudicial, effect on reliable fact-finding.
Jailhouse snitch testimony, in fact, is so likely to make a material difference to the outcome of close cases, and so likely to be false, that permitting such witnesses to testify, absent direct corroboration through electronic recording or some other similarly reliable method, should be flatly banned. Numerous commentators have proposed modest fixes to the jailhouse snitch problem. Some have urged the conduct of pretrial reliability hearings. Others have argued for enhanced disclosure obligations regarding informant background and testimony. Still other fixes have been proposed. But given the depth to which jailhouse testimony is compromised, these modest proposals are simply inadequate. Anything less than total abolition of jailhouse snitch testimony is fundamentally insufficient to address what is perhaps the most outrageous and destructive prosecutorial practice currently tolerated by law.
