• SNITCHING: Criminal Informants and the Erosion of American Justice
  • U.S. Attorney General's Guidelines on the FBI's Use of Confidential Human Sources
  • Sarah Stillman, The Throwaways, The New Yorker (2012) (article on the use of juvenile informants)

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Wednesday, August 12, 2009

Pleading Guilty versus Going to Trial

Sometimes I will post about an aspect of what I call informant law - i.e. the legal rules and policies that govern the use of informants. An important but little-known fact about the rules of snitching: defendants who go to trial are constitutionally entitled to negative information about informants who might testify against them (usually referred to as impeachment or Giglio material), while defendants who plead guilty (approximately 95 percent of all felony defendants) are not entitled to this information.

Lets say Defendant Jane Smith is accused of dealing drugs, based on the say-so of criminal informant John Doe. If Smith goes to trial, the government is obligated to give her any material information in its possession regarding Doe’s credibility, including the rewards he got for cooperating against Smith, his prior convictions, instances of perjury or recantations, and things like that. The Supreme Court has held that this is necessary to ensure a fair process. But the Supreme Court also held in United States v. Ruiz that if Smith takes a plea, she has no right to see that information. This means she has to decide whether to plead guilty without knowing how credible or corrupt John Doe might be. She only gets to learn that information if she rolls the dice and goes to trial.

Ruiz is about what the U.S. Constitution requires--other rules may come into play. For example...

some states and districts demand more disclosure, and require the government to provide impeachment material to defendants to be considered during plea negotiations. Some federal prosecutorial offices provide informant impeachment material voluntarily as a matter of internal policy. But the bottom line is that, constitutionally speaking, they do not have to.

This rule has some significant consequences. One is that the government can insulate shady informants by offering defendant good deals. Thats what happened in Ruiz - the government offered Angela Ruiz a so-called fast track plea if she would waive her right to impeachment material about the snitch in her case. If a defendant is sufficiently scared of going to trial-maybe her lawyer doesn't have time or resources, or maybe she has a prior record and can't testify-she may take the deal to avoid a worse sentence.

More broadly, it means that the government can expect that in the vast majority of cases it will never have to disclose the deals it makes with its informants, or the kinds of people that it uses as informants, because over 90 percent of cases are resolved by plea. When defendants don't get to see this material, the public doesn't either.

This is a problematic way to run a criminal system that is ostensibly committed to transparency and public adjudications of guilt. When informant deals stay secret, the public loses sight of how police and prosecutors evaluate crime and impose punishment. Many criminal informants escape liability for very serious crimes - Ruiz makes it easier for the government to hide this fact. When information sources are shielded from scrutiny, moreover, we don't get to see how the government investigates crime or chooses its targets. These are important aspects of criminal justice, but the nature of snitching rules like the Ruiz decision tends to erase them from public view.