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I'm Telling!

I’m sure my experience as a child in a home with multiple siblings is not unique. When I was a kid, one or the other of us not infrequently threatened to “tell” on one or more of the other kids in the family for some real or perceived “sin.”

Equally as often, this statement set off a race, as each of us rushed to be the first to “tell” mom or dad “what happened.” Of course, the telling and the what happened did not always exactly match up — at least partly depending upon who made it to mom and dad first. And the reason for the race? Sometimes it seemed that whoever got their story out first had the upper hand; the other — or others — were thrown on the defensive. (“Nu-uh!”)

A similar thing happens when one is charged with a crime and one’s “siblings” — in this case, “other persons accused of crimes” — are looking for their own advantages.

And the prosecutor’s case needs a little boost.

When prosecutors need someone to “tell” — and here the telling is usually to a jury, rather than mom and dad, who served as both judge and jury — they turn to jailhouse snitches to get that little boost.

As when my siblings and I were kids, this creates a problem for the accused. It gives the accused, already busy trying to defend, one more “witness” against whom to defend. And for whatever reason, just as when we were kids, the “snitch” is often the most difficult “witness” against whom to defend. According to the San Francisco Daily Journal,

A 2005 study by Northwestern School of Law concluded that testimony by in-custody informants is the leading cause of wrongful convictions in death penalty cases in the United States. San Francisco Magazine reported in 2004 that unreliable testimony by jailhouse snitches was a factor in roughly 20 percent of wrongful convictions in California since 1989. Emily Green, “Jailhouse snitch bill approved by Legislature,” p 8, col 3, below fold (July 18, 2011) (emphasis added).

That’s right. Two out of every ten wrongful convictions in death penalty cases are attributed, at least in part, to the testimony of jailhouse snitches. Tattletales. People out looking to improve their own lot in life at the expense of someone they may know absolutely nothing about at all.

As the Daily Journal article points out, the California legislature appears to be making another try at dealing with this issue by requiring that

prosecutors would be required to use witness testimony or physical evidence to bolster the accounts of jailhouse informants. Green, supra.

Imagine that! Prosecutors would not be allowed to try to convict someone based on the uncorroborated testimony of a snitch, who may be making up his or her entire story. Instead, they’d have to have some other evidence that tended to support what the snitch was saying!

Twice previously, similar legislation was struck down by The Governator. Despite the fact that both the San Francisco and Los Angeles District Attorneys agree that uncorroborated snitch testimony is a problem — and at least in Los Angeles, the DA’s office policy no longer allows for it — and despite twice being told by the Legislature that this problem needed to be fixed, The Governator vetoed the legislation. The District Attorneys’ Association — apparently less squimish than either the San Francisco or Los Angeles DAs — also opposed the legislation.

Why?

The premise underlying the measure is that such evidence is inherently suspect because in-custody informants have a strong incentive to manufacture false statements…. [but] [w]hile logically true in the abstract, the concrete reality is that current criminal procedure provides adequate safeguards in every actual case. Green, supra.

Which explains why snitch testimony was a factor in only two out of every ten false convictions in death penalty cases.

Imagine what would happen if we didn’t have these other safeguards!

Ironically, California law already says that you cannot convict someone based on the uncorroborated testimony of an alleged accomplice to the crime. That is, someone who was allegedly there when the crime was committed and testifies to that fact — well, that’s not good enough if the person is an accomplice. Yet a snitch who was not there is allowed to testify, without the need for corroboration, and if believed by the jury that’s good enough for a conviction.

According to a 2006 commission, at least 17 other states already require corroboration for snitch testimony. It’s time for California to take the plunge as well.

After all, what do we really have to lose, except fewer false convictions of innocent people?

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