Federal Criminal Law and A Culture of Informants
When I used to be a prosecutor, I was trained to distrust informants and co-defendants. Who has a stronger motive to lie than a person who is charged with a crime and who has no defense? The jails are full of informants who are constantly listening to other inmates so that they can “snitch” on them and receive a reduced sentence.
To those who are not part of the criminal law culture, there is something offensive about individuals informing on others. Indeed, the country of Cuba has an organization called the Committee for a Democratic Revolution or “CDR.” The organization is made up of captains who control each neighborhood and who report any suspicious activities so someone higher up the chain. North Korea also employs a system where children are raised to even denounce their own parents when they commit crimes or when they disagree with the regime.
The federal system in the criminal courts is not all that different. The federal system provides for a reduction of sentence in the following circumstances:
5K1.1. Substantial Assistance to Authorities (Policy Statement)
1. Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.
(a) The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:
(1) the court's evaluation of the significance and usefulness of the defendant's assistance, taking into consideration the government's evaluation of the assistance rendered;
(2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
(3) the nature and extent of the defendant's assistance;
(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;
(5) the timeliness of the defendant's assistance
There are several problems with this model of “justice.” First, the most guilty parties generally have the most information to give and often receive the most lenient sentences. Second, the government controls making the motion for assistance although court cases have said that the government must use good faith. Finally, defendants who are facing a substantial amount of time are in a position to often lie to attempt to gain the greatest benefit.
Unfortuntately, many federal prosecutors feel that they cannot prosecute a case unless they have informants or co-defendants ready to testify for them. To the contrary, good police work makes the use of an informant unnecessary in most cases.
At my law office, I recognize that the decision whether to become an informant is a personal one. I will counsel all of my clients to the potential benefits of of providing “substantial assistance” but also to explain the many risks and pitfalls. And I also strive to learn the background of all individuals who provide evidence against my client realizing that many times they have a very strong motive to lie because they may be receiving money from the government to be an informant, they may be working to have charges dismissed against them, and they may have nothing to lose for providing false testimony.
The federal system of criminal justice should strive more toward a model of reliability where the risk of false convictions is less because the testimony of informants and snitches is used sparingly and only when demonstrated to be accurate.