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Justice can be tainted by use of informants’ testimony

Innocence Project attorney and co-founder Barry Scheck, right, hugs client Darryl Howard in September 2016 after a North Carolina judge vacated Howard’s 1995 double-murder and arson convictions. (The Innocence Project)

IN recent years, while the conversation on criminal-justice reform has been divisive at times, a few key values have emerged that unite all of us: accuracy, reliability and transparency.

A healthy justice system demands these features — so that we don’t allow those who really commit crimes to remain undetected or unaccountable, and we ensure that the strongest protections are in place for the innocent.

State Senate Bill 5038 is an opportunity to do just that in Washington, adding to key advances the state has already made over the years to improve the administration of justice. SB 5038 addresses the issue of false testimony by “incentivized” informants, people suspected of crimes or people incarcerated who are often used by the government in criminal prosecutions to provide information or evidence against defendants in exchange for an explicit promise or expectation of a personal benefit.

Benefits include anything from reduced or eliminated jail time to improved living conditions behind bars to monetary rewards. Recognizing both the value of this testimony to the state and the risk that a witness will be tempted to give false testimony in order to benefit personally, this bill outlines specific information that must be learned and turned over to the defense in the discovery process before trial. This will ensure that all parties have an opportunity to properly scrutinize the informant.

The reality is, some informants lie. When they do, they undermine the integrity and the truth-seeking function of our justice system. We all bear responsibility to ensure that the evidence they offer is reliable. To understand the scope of the consequences of false testimony, which can and does send innocent people to prison, consider these facts:

• False testimony by incentivized witnesses is a leading cause of wrongful conviction in capital cases nationally, a contributing factor in nearly half of such exonerations.

• Of 349 DNA-based exonerations, 17 percent involved an incentivized witness.

• In Tulia, Texas, 46 innocent people were convicted of drug charges based on the testimony of a single, lying informant.

• Ten Washington state wrongful conviction cases listed on the National Registry of Exonerations involved the use of incentivized testimony.

These numbers demonstrate that this is a national problem, requiring all states to look closely at the safeguards needed to regulate this system. SB 5038 addresses an information gap in the system that will improve accuracy and protect constitutional rights.

In states around the country the absence of data such as the charging history of the informant or the number of times they have offered to give testimony in exchange for a benefit or the details of how they obtained the information makes it impossible for prosecutors to properly vet the informants themselves, let alone share this material evidence with defense counsel. As representatives of the people and stewards of the justice system, prosecutors have a responsibility to know and disclose this information.

In response to the growing awareness around this issue, numerous state legislatures and courts, from Florida to Texas, have begun to act. This year alone, in addition to Washington, four states are considering proposals to strengthen or establish new frameworks for assessing informant testimony. Notably, while some proposals go further than others, all of these proposed reforms impose new disclosure requirements around incentivized informants.

More than anything, this highlights that the first and most critical step toward eliminating the issue of false testimony by an informant is ensuring that information that may bear on the reliability of an incentivized witness is obtained by both sides and is available to be presented to the jury.

For far too long, the world of incentivized informants has been an evidentiary black hole. Every year that passes without these reforms puts more innocent people at risk, and compromises justice for the victims, their families, and our communities. I urge the Washington Legislature to pass this critical legislation and shed much needed light on an otherwise opaque system.