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Monday, January 31, 2011

So what is wrong with the 'System'

In my previous blog I opened an argument that the main problem with the management of informants is 'the system' that has evolved around their management. I use the term 'system' loosely as there is not one US system for managing informants. Different agencies use different languages have and have different processes despite attempts by both the Department of Justice and International Chiefs of Police Association, among others, to try and standardise terminology and methodology.

While inconsistency in methods and terminology mean that systems are different it doesn't actually mean they are wrong. True ...but there are too many cases that give rise for concern that it is only by burying ones head in the sand that anyone can try and defend the status quo. Citizens have died, the innocent have gone to jail and the guilty have walked free and good cops have gone bad all because of poor informant management practices.

Let's get to the basics. Firstly the terms 'snitch' 'confidential informant' 'human source' (FBI), 'cooperating witness' and many other derivatives are all used interchangeably. They are not the same. Just as a farmer keeps a horse, a sheep, and a cow for agricultural purposes, the way he manages these animals and what he uses them for is different. It is exactly the same with citizens who are providing law enforcement with information. Categories need to be clearly identified and then the individuals managed accordingly. If we try and milk a horse or sheer a cow, things are going to get messy and the products won’t be what we were hoping for!

How we identify what category a person falls into is most easily worked by answering the simple question: In what way are the law enforcement agency’s intending this person to act? Everything else then follows from that. The first category to look at is the person who is intended to provide evidence.

A significant amount of the concerns that are articulated about 'snitching' revolve around persons who give evidence to obtain a lessening of their own sentence (for example 5K motions). These individuals are not informants they are witnesses. The two roles are different using the terms interchangeably or the terms snitch and/or confidential informant for both roles confuses all involved (arguably most damagingly, the jury). If it is the intention of the law enforcement agency is to use a person to give evidence against another that person is a witness. The reason the terms 'snitch or informant' are used relates to the individuals motive and/or perceived circumstances not the act that they are doing. Using such terms is based in human prejudice. Law enforcement wants this person to provide evidence to a court. Once such a decision is made everything that the law enforcement agency does needs to be done to ensure that the evidence is presented to the court in a manner that the jury can make an objective decision as to whether or not that person’s evidence is credible or not. This means rigorous documentation of each and every contact with that witness from the time they are first spoken to up to the time they give evidence and including details of any subsequent benefit they may receive post trial. All documentation must be of evidential standard. US law enforcement needs to devise a term for this type of person be it cooperating witness, convicted witness, prison witness or whatever but it should include the word witness for that is what they are. National legislation and policy should be drawn up to direct the evidentiary and management criteria surrounding such individuals. Whether or not the evidence of such a person requires corroboration is not for me to dictate but for the US legislature to decide. However, given the huge incentive for such a person to lie, such corroboration may be prudent.

While the US criminal justice system continues to allow confusion around terminology and role, particularly with regard to the evidentiary process, erosion of that system and loss of public confidence is inevitable. Furthermore, while such a situation continues, it helps criminals subvert communities by discouraging law abiding citizens from giving information to the police through such campaigns as that of "Stop Snitching".

In subsequent blogs we will look at the two other categories of informant and then in more general terms at what can be readily achieved to improve the overall management of informants. I welcome any comments, concerns or criticisms.