Thursday, January 21, 2010

Corroboration Required: Accomplices, Jailhouse Snitches, and Drug Informants

Thank goodness the Texas Legislature had the good sense to require corroboration of certain prosecution witnesses before a jury could legally convict someone for a crime. For years the accomplice witness rule prevented the government from convicting someone based solely upon the testimony of an accomplice. That is, someone who was involved in the crime, got caught, and then turned State's evidence to save their own hide.

Even the village idiot knew such testimony was inherently unreliable and could routinely lead to the imprisonment of innocent people. Consequently, the accomplice witness rule demanded a defendant not be convicted of an offense on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the crime. Moreover, corroboration was not sufficient if it merely showed the commission of the offense. In other words, even if a jury believed everything an accomplice witness testified about, the law prohibited a conviction unless there was other evidence connecting the accused to the crime.

In recent years, two new laws were enacted requiring corroboration of other types of prosecution witnesses. First was the jailhouse snitch rule and then the drug informant rule. Both rules were similar to the accomplice witness rule in that corroboration was required before a jury could convict someone based on the testimony of these witnesses. Again, the inherently unreliable nature of this testimony raised the specter of convicting innocent persons.

Interestingly, Texas case law has held one type of unreliable witness cannot be used to corroborate another. For example, a jailhouse snitch cannot be used to corroborate the testimony of an accomplice, and vice-versa. The same holds true for drug informant testimony.

The challenge for the criminal defense attorney is getting the jury to commit to corroboration. In other words, if a jury believed the accomplice was telling the truth, they'd be reluctant to acquit someone based on their perceived moral responsibility to convict the guilty. Sometimes a crime is so awful, or the jury so afraid, that they invent corroboration in order to convict. The good news is that appeal courts use the corroboration requirement when evaluating evidence sufficiency questions. Stated another way, if there truly is no corroboration, the defendant has an excellent chance on appeal for a reversal.


Gritsforbreakfast said...

Stephen, you're singing my song. :)

Not to brag too much, but my wife and reporter Nate Blakeslee wrote first draft of that drug-informant corroboration bill back in 2001; I worked for ACLU at the time and lobbied for the bill on the group's behalf. And I wrote the initial draft of the jailhouse-snitch bill when I was policy director at the Innocence Project of Texas. So this is one of my household's pet issues.

Chuy Hinojosa was the driving legislative force behind both bills - as a state rep in 2001 and state senator in 2009. But interestingly, both bills drew virtually unanimous, bipartisan support once we got past the initial flack (and minor, relatively insignificant changes) from law enforcement interests, in part because you can point to so many different scandals.

The 2001 bill was generated following the Tulia drug stings and in its original form would have also required corroboration for undercover peace officers, which made the police unions go bonkers. Once that was stripped out, there was little opposition to requiring, then in 2009 expanding, corroboration requirements for informants. Indeed, if you can think of other categories of informants where corroboration is demonstrably needed, we could probably go back to that well again!

If you haven't seen it, check out Alexandra Natapoff's Snitching blog and her new book by the same name. Her writing has influenced my work on this a lot.

Stephen Gustitis said...

Scott. Great to hear from you. Nice work, then!

Frank Mitchell said...

Hi Stephen,

Nice article. I am a student at South Texas College of Law and I am currently working with the Innocence Project Clinic at our school. I am researching a paper on this phenomenon and what brought about this new law. I started wondering though, and thought you may be able to help with some perspective. I understand that this type of action is to try and stem untruthful or unreliable testimony from a class of witnesses with a motive for their story. I have started to think that a victim is also a witness with a motive. Granted, that motive may not be seen as evil, but it is somewhat self-serving like the others. We have studied several cases in the DOJ reports about instances where people were convicted solely on victim identification or testimony and then were later proven innocent by DNA. A victim witness has a motive of closure or having someone pay for their victimization. My question is, why hasn't this logic carried over to victim eyewitness testimony, thereby requiring corroboration for their testimony as well? I was wondering your thoughts on, when it comes to a witness with a motive (regardless of what it is) should the trigger for corroboration be, what the motive is or the fact that they have a motive at all which could influence testimony? Thanks.

Stephen Gustitis said...

Great comment and question. I suppose that every witness who ever testified had a motive or bias regarding their testimony. From state sponsored chemists, to cops, to eye witnesses. Any witness could be mistaken, or have a motive to lie, regarding their testimony. But if we had to "corroborate" everyone who had a motive to testify, we'd never get anything done. As a matter of public policy, we've decided that certain classes of witnesses are inherently unreliable and that accused persons need protection from them. Other than accomplices, snitches, and informants, no other class of witness has emerged as inherently unreliable from a public policy point of view. Maybe eye witnesses need to fall into that category. Maybe hardworking people, like you, need to convince legislators of the unreliable nature of the testimony.