To Be Attacked by a Cyber-Space Troll, installment two

By Mark Richards, 2019

Studies also have shown that false testimony by witnesses cause more wrongful convictions than the next two leading causes – erroneous identification and false or coerced confessions – combined.

In a study by the University of Alabama psychology department, mock jurors were unable to detect the coercive nature of confession testimony, and more importantly, they gave undue weight to an informant’s confession testimony in determining guilt. The study’s authors concluded that “if jurors cannot perceive the difference between an honest and dishonest cooperating witness there is grave potential for such testimony to lead to wrongful convictions of the innocent.” In stating the obvious, the researchers observed that this creates a “substantial problem for the criminal justice system.”

When an informant’s testimony is the sole evidence to support a conviction or an accusation, “the integrity of the system is at stake,” Natapoff warned. She observed that the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), placed a requirement on the courts to evaluate the reliability of expert witnesses because they can be “both powerful and quite misleading.”  However, there is no such requirement for an incentivized witness testifying about unsubstantiated facts on behalf of the government or some media pundit.

One might remember that an incentivized witness is someone who testifies on behalf of the government or any source of information against another person or group in exchange for an expected benefit.  This benefit may include favorable treatment in the person’s own criminal case, money, protection against the threat of being attacked themselves, or other goods or considerations. This can include so-called “Good Samaritans,” who come forward on their own with information about someone being accused of wrong-doing for no other reason than the public recognition of being one of the voices who helped ‘put that guy away.’

The term “incentivized” means “a motivation or reason for doing something.” Incentives offered to government witnesses have included reduced sentences, cash, a chance to spare friends or family from criminal charges, an early parole, or any other deal the government offers for the witness’ testimony. The term “witness,” also referred to as “informant” in this context, means someone who provides information or testimony in exchange for an incentive. Though not limited to only criminal suspects, by far the most common  government informant is the “jailhouse informant,” who is a person facing criminal charges or serving a prison sentence who wants a reduced sentence or charges dropped in exchange for his information against a fellow prisoner. The State of Alaska, for example, defines “informant” as “someone who provides evidence against someone else for money or to escape or reduce punishment for [their] own misdeeds or crimes.” The labels “incentivized witness” and “informant” are often used interchangeably.  (Quoted by Dale Chappell, in “Government Snitches,” Criminal Legal News, March 2019, page 3.)

The testimony offered by an incentivized witness about what a defendant said or admitted to is called a “secondary confession,” which is defined as “evidence provided by someone other than the suspect and purported to be direct information from the suspect.” It is this secondary confession that’s the product the informant sells and for which the government – or the reporter – barters.

Amazingly, the government knows just how perverse this practice is.  “Informants are not the most reliable people around,” Orange County, California, District Attorney Tony Rackauckas told 60 Minutes. When the host asked Rackauckas about a particular informant popular with his office, he said,” I think you should assume you’re talking to an informant. And if he’s talking, he’s probably lying.” Prosecutors know that the product they are buying has defects. So do reporters and other media pundits. The problem is, as long as it helps to prove their side of a case or story, they don’t care.

As we have painfully seen, snitches come in all shapes and sizes, and their various labels come from their position in the grand scheme of the proceedings.

The “jailhouse snitch” is the prototypical incentivized witness who informs law enforcement, prison staff, or the media about what another prisoner has supposedly said or done, usually the result of an overheard conversation or at the snitch’s prodding. This type of informant is often involved in many wrongful convictions, or the original crime that set the story in motion. The “accomplice informant” is the co-defendant of the person the informant is offering information against in an effort to get his own charges dropped or sentence reduced. These informants are commonly used by law enforcement and the media to ensnare others in the supposed scheme, especially the bigger fish.

Interestingly, the Department of Justice does not consider accomplice witnesses as “confidential informants” to which rules governing protection and payments apply. Instead, the government considers these informants “cooperating defendant/witnesses” who have an expectation of a reward for their services. Confidential informants, unlike accomplice witnesses, also do not testify in court in order to protect their identity in future cases.

The “calumniator” has traits of the other types of informants but is distinguished by the desire to shift as much blame as possible onto someone else in order to escape liability. It is not uncommon for the calumniator to place blame on an innocent person, which has resulted in many wrongful convictions, not to mention many innocent people ruined by media that often promotes such calumniators.

Snitches are the leading cause of wrongful convictions in the United States, particularly in capital cases, according to a 2004 Northwestern University study. (Cassidy, Michael R.; “Soft Words of Hope, Giglio, Accomplice Witnesses, and the Problem of Implied Inducements,” Northwest Univ. Law Review 98, ©2003.) Researchers in that study discovered that nearly half of the exonerations involved convictions that were based on snitches. Over 100 of those exonerations were for prisoners on Death Row. Study after study have shown wrongful convictions based on incentivized witnesses is a real problem worth investigation, while the growing problem of innocent people being ruined by the rumor-mill of cyber-space is becoming an epidemic.

Again, one should remember what U.S. Court of Appeals Judge Stephen Trott said in his 1996 commentary on incentivized witnesses titled, “Words of Warning for Prosecutors Using Criminals as Witnesses”: “Criminals are likely to say and do almost anything to get what they want, especially when what they want is to get out of trouble with the law.” Not only do incentivized witnesses have the ability to fabricate evidence, they can do so without sparking much suspicion because they know the information they provide is difficult to corroborate or to defend against. Incentivized witnesses can manipulate their version of the facts precisely because they know which facts are verifiable and which are not. The lies by the incentivized witness are difficult to detect, and the listener may infer from the details provided by the witness that the facts are indeed true. And who would know? The prosecutor or media-type wants to believe the witness, and the defense attorney does not believe him, but cannot prove he is lying.

There is also little to no oversight of a prosecutor or media reporter using an incentivized witness. The U.S. Supreme Court has ruled that prosecutors have “broad” power to administer criminal justice and prosecute (or not) however they see fit. Retired U.S. District Court Judge John Gleeson remarked that “judges are in fact not well suited to supervise criminal investigations, a process which is generally best left to the Executive Branch.” This leaves the prosecutors themselves to oversee their use of incentivized witnesses, a plan not without its obvious weaknesses.  There is no watchdog group or authority to keep an eye on the media’s use of such people. Because of an offer of leniency from the prosecutor – often with the help of a media pundit working with the government – the situation offers a powerful incentive to lie.

To be continued…



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