12:50 PM – Just to be clear, it is obvious that certain members of the Commission did not want to have to register a vote up or down on whether to allow law enforcement to commit acts of deception in interrogations. They wouldn’t even answer Senator Siplin’s question about why they need to deceive during confessions. So instead, they refused to allow the separation of Nunn’s prongs of his proposal, instead taking it up all at once and voting it down. But make no mistake, 14 members of the Commission voted down a recommendation that would disapprove of certain deceptive tactics in interrogations. This is a vote for deception plain and simple.
1:03 PM – Commission meeting is called back to order. Judge Perry will now do a powerpoint presentation on informants and jailhouse snitches. He identifies four ways to reduce the risk associated with informant testimony: (1) requiring testimony being corroborated by independent evidence, which may not be the testimony of another informant; (2) use of cautionary jury instruction which tells jurors to weigh the testimony with care; (3) the use of pre-trial reliability hearings, which would use the courts as a gatekeeper similar to admissibility hearings on expert scientific testimony; and (4) requiring written pre-trial disclosures, including the informants statements, documentation of any agreements.
1:13 PM – 18 states already require corroboration. Illinois requires pre-trial reliability hearings. Most of the stuff in the list of pre-trial disclosures is probably already required under Florida’s discovery rules but it would be a good idea to make it explicit because information relating to deals with snitches is regularly suppressed despite the discovery rules and due process requirements. California and Illinois have been a leaders on this Pennsylvania’s Commission has a model jury instruction for jailhouse informant testimony.
1:19 PM – Perry is discussing two policies passed by the ABA in 2005, which would require prosecutorial screening of jailhouse informant testimony and corroboration. I have been working on a more robust policy including the above mentioned four proposals, but have not been successful getting the ABA to adopt it yet. Perry is discussing the Florida rules on this (Rachel’s law) which says that informants should not be given inducements and be given access to a lawyer. This refers more to informants in drug cases, which Rachel Hoffman was. It is unclear whether inmates relaying supposed jailhouse confessions would fall under this. Florida also has a special cautionary jury instruction for when the jury is confronted with accomplice testimony but it does not apply explicitly to jailhouse informants.
1:22 PM – Judge Perry is discussing the jury instruction in California which says that the testimony of an in-custody informant should be viewed with caution and skepticism and the jury should consider anything received by the informant. In Illinois capital cases the prosecution must disclose the complete criminal history of the informant, whether they ever recanted the statement, other case in which the testified, anything they received in for their testimony, etc. Again, the law already requires this stuff to get turned over but it still gets suppressed. Also, we probably need a clearinghouse for snitches that allows sharing of information between prosecutor offices so we can better identify serial snitches and turn that information over to the defense. Illinois also requires the prosecution to prove reliability fo the informant at a pretrial hearing by preponderance of the evidence or the testimony is excluded. Nebraska and Texas simply require corroboration, which does not include evidence only showing the commission of the offense. In Oklahoma, their supreme Court, In Dodd v. State, dealt with this issue and came up with its own jury instruction.
1:30 PM – The Commission is also looking at jury instructions from federal circuits, including the cautionary jury instruction from the federal 11th circuit. It feels like we are building to a proposal that only enacts cautionary jury instructions. This is good but insufficient on its own. We really need pre-trial reliability hearings and more explicit pre-trial discovery requirements. While North Carolina and Alaska have less involved, succinct jury instructions, Connecticut and Oklahoma have more in depth instructions who give better guidance to the jury on how to evaluate several factors affecting the reliability of the informants testimony, including whether they have received anything in exchange for their testimony and whether they have snitched before.
1:32 PM – OK, my feeling was true. The Commission staff has come up with some model jury instructions which basically just say to use caution when there is no other evidence supporting the testimony, but that if the jury believes the testimony proves guilt beyond a reasonable doubt, then they should convict. this is probably too simplistic.
1:35 PM – Judge Perry says that the COmmission has to decide the extent of what it wants to do but that he hopes that everyone in the room agrees that jailhouse informants are problem that needs to be addressed. He is relaying an anecdote about when he was in the state attorneys office and there was not a day that went by he didn’t get a call from the jail from someone who wanted to snitch, some reliable others not.
1:40 PM – The judge opens it up to discussion. Sheriff Cameron says that confidential informants are different from jailhouse informants and that jailhouse informants are the least desirable witnesses. he said he would not oppose most of the policies that other states are doing. ”I think there are some things we can do to benefit the court process so that we can know whether the person got something for their testimony.” A pretty light-hearted moment when Professor Nunn agrees with Sheriff Cameron and someone comments that this was a first.
1:41 PM – State Attorney Brad King says that because of our discovery rules this would probably only be necessary to address jury instructions and the corroboration requirement. King would also maybe ut tougher restrictions on the public disclosure of ongoing investigations so snitches can’t get ahold of information that can be the basis of snitches testimony. King expresses frustration that because of publicity it is difficult to discern between whether the snitch heard something from the defendant or is making it up from publicity. King also opposes the pre-trial reliability hearings because he doesn’t think it is possible to determine the reliability and this is ultimately a jury question.
1:44 PM – Sheriff Cameron thinks preponderance of the evidence is too tough a standard for the pre-trial reliability hearings even though that it the lowest standard of proof one could probably have for the admissibility of that evidence.
1:49 PM – Judge Perry makes an over arching statement that everyone just wants a jury instruction even though no such vote was taken. So now we are talking about different types of jury instructions. Now Perry is saying that he thinks the least controversial policy, the corroboration requirement, may limit the ability to get to a consensus on the jury instruction. 18 states have a corroboration requirement. The ABA has recommended it. Corroboration is the low hanging fruit in this issue.
1:55 PM – This is bizarro world, Sheriff Cameron seems to be proposing the Oklahoma instruction which is pretty specific about the issues to consider when weighing the informants testimony. Perry suggests some hybrid of the 11th circuit instruction and the Oklahoma instruction. Well now we are back to normal with Brad King makes a motion to adopt the 11th circuit instruction without itemization of the factors to consider, which of course would make the instruction nothing more than a vague warning.