2:01 PM – Hank Coxe says he hopes we are not dispensing with some of these other recommendations like broader pre-trial disclosures. Professor Nunn points out that the Illinois statute has the most extensive list of what should be disclosed and he agrees with Coxe that the jury instruction is not the sole means to solve the problem.
2:04 PM – Judge Reyes thinks we only need minor tweaks to the rules we have.
2:08 – Hank Coxe says this is a serious issue and we should take up all four proposals. He has never seen the broad pre-trial disclosures required in illinois in his criminal practice so Florida’s discovery rules are not sufficiently explicit.
2:25 PM – Nancy Daniels moves to have a statute requiring corroboration. Scott Fingerhut suggests we use the Texas corroboration language. Nancy Daniels thinks the California statute is ok which says that jailhouse informant testimony cannot be the sole evidence on which to base a prosecution.
2:32 PM – There is a lot of confusion in the room because there have been so many state and federal examples shown that no one knows what is a statute and what is a jury instruction.
2:33 PM – We have a disagreement between Sheriff Cameron and State Attorney Brad King. Hallelujah! Cameron thinks that the Texas corroboration requirement and King jumps in and says “Sheriff you need to understand what you are agreeing to”, suggesting he is clueless, and then gives a remote hypothetical where this requirement would prevent the prosecution of someone. Nancy Daniels says she finds this persuasive. I would note that if this is good enough for texas and California, the states with the largest criminal justice systems in the nation, it will not likely be something that hurts prosecutions.
2:38 PM – Nancy Daniels withdraws her motion and Sheriff Cameron is now back in line with Brad King, saying that maybe we should just worry about jury instructions. Nunn makes the good point that we shouldn’t let the perfect be the enemy of the good and that it is unlikely that you get a case where the jailhouse snitch testimony is the only evidence and such a case would be prosecutable because there is no way to determine the reliability of that evidence.
2:45 PM – Hank Coxe doesn’t want to get bogged down on corroboration and really wants to focus on pre-trial reliability hearings, which would take place in-camera. Judge Patricia Kelly says we need to start from the premise that the evidence is inherently unreliable and the point of such a pre-trial hearing would be so the proponent of the evidence (the prosecutor) can demonstrate reliability.
2:54 PM – Nunn is cross examining Brad King about what considerations his office goes through when prosecuting a case only on snitch testimony. Very pointed question. Nunn is pretty amazed that any prosecutor would prosecute a case solely on the basis of snitch testimony. Nunn thinks that the details in the tip can provide corroboration itself and that this is standard constitutional jurisprudence.
3:01 PM – This may sound odd for me to admit, but Brad King has been quite effective today, more so than normal. I think he probably won the argument on whether the Commission will recommend a corroboration requirement, even though so many states have the requirement already.
3:07 PM – Howard Coker chimes in that normally he would leave this issue up to the jury but he thinks that it is so unreliable that he would favor pre-trial reliability determinations. Nancy Daniels thinks that if you are not going to have a corroboration requirement, then you have to have a pre-trial hearing to evaluate the totality of the circumstances. If then it makes it through to the jury, you get a jury instruction. I think there may have been a Jedi mind trick here. Daniels is using all the reasons King eloquently gave for not requiring corroboration as the very basis for having a pre-trial reliability hearing.
3:09 PM – Hank Coxe makes a motion to have the staff draft a policy for a pre-trial reliability/admissibility hearing, which would include corroboration as one factor to consider in the totality of the circumstances. So no particular criteria would bar prosecution. The motion is seconded. In discussion, Judge Silvernail asks everyone to read the Justice Project’s white paper on snitches. The motion passes, with only Carolyn Snurkowski from the Attorney General’s office saying no. It appears that there may be overwhelming support for pre-trial reliability hearings, matched with cautionary jury instructions if it does come in. This would be a really good result if it actually happens.
3:17 PM – They have set up a sub-committee for the pretrial disclosures, including King, Walbolt, Coxe, Daniels, and Figngerhut (chair). Meeting adjourns.