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.
Comments
I think you are reading more into Ruiz than is there.
It does not state that a defendant does not have a right to the impeachment evidence if the impeachment evidence relates to a witness who is testifying at a contested sentencing hearing.
If a defendant objects to a portion of the presentence report (say drug attribution based on a snitch's debriefing) then I believe and Ruiz does not hold otherwise, the defendant has the right to discovery including impeachment evidence.
If there is a plea deal and a person does not testify at the sentencing hearing because the defendant did not object to assertions of fact in in the PSR based on that person's prior statements what need does the defendant have for the impeachment material that would warrant his claim of right?
Now, you may have strong arguments based on societal intersts but those are apart from the need of an individual defendant to receive disclosure.
Respectfully, I think that you're complaining about defendants getting their cake but not getting marshmallow topping on the side. At least in the federal system, defendants are routinely, literally saving years of their life by pleading guilty, not only based on the charges they avoid being prosecuted for, but also by having their guideline sentence reduced by three levels for accepting responsibility and admitting to relevant conduct. That's a pretty substantial benefit, which (along with the fact that defendants in the federal system are typically caught dead-to-rights) is why so many cases plea. Why should a defendant not have to bargain something in return?
I didn't mean to give short-shrift to your "societal" concerns, i.e. how law enforcement investigates crimes or chooses which cases to prosecute. I understand this concern, but truly think it is more theoretical than real. I've worked in three prosecutor's offices and can say unreservedly that more cases than the public would imagine don't get prosecuted 1) Because resources just don't allow the case to be taken 2) A case involves a CI that an office will not sponsor as a witness 3) Prosecutor's Offices like to win and don't - generally - have to take problematic cases in the first place. I recognize that because I'm in the factory making a lot of the sausage that maybe my comfort level is higher because I'm in the know, but I think that the fact that 90-95% of cases plead guilty speaks pretty strongly to the fact that the vast, vast majority of the time law enforcement and prosecutors are targeting people who are just flatly guilty. Can snitching and relying on snitches be a sordid business? Yes, but the vast majority of the time a snitch is only helping strengthen a case that was already strong enough to have convinced law enforcement it was worth pursuing, presenting, and prosecuting.
You're right, Ruiz addressed only a defendant's entitlement to Giglio before a plea. If an informant testified at sentencing, that would be another matter.
I'm impressed. A simple straightforward acknowledgement a post could be misconstrued and a clarification. That may not make you unique, but it earns you a spot within a tiny minority of blogworld. Good work.
I have a few other thougthts for you to consider.
First, I think a "Snitching Blog" should define term "snitch" which is not a legal term of art and means different things to different people. In popular usage it sometimes is defined so broadly as to include anyone who talks to the cops about a crime. Other broad definitions might encompass any "civilian" who testifies against a defendant or even agrees to do so if necessary.
I think you need to state waht you mean when you use the word.
In the case of a ci wearing a camera on three drug buy for the police ,but ci never recieves any drug transaction on the camera . The police also raid the house of the defended looking for drugs, there was no drugs or mark money recovered from the house or the defened ,so the police charge the defend with three counts of delivery of cocaine based on the ci word that she received the drugs from the defended .There was no police with in plain vuie of te meeting of the ci and defend. does the ci have to come to court to testify.