It’s the Betrayal of Trust That Makes Us Question Use of Jailhouse Informants

A veteran jailhouse informant has demonstrated to officials how, by using the telephone at the Los Angeles County jail, he could concoct a confession by another inmate that prosecutors might believe.

The demonstration has raised serious questions about the use of jailhouse informants by the district attorney’s office in a number of major cases.

To understand this controversy, we need to look at just why such jailhouse informants might be used and why their apparent misuse is so troubling. Here we need to distinguish the jailhouse informants from other kinds of informants. We are not talking about the so-called “confidential informants”--persons with criminal connections who work with the police in undercover investigations, especially in drug cases. Nor are we talking about would-be defendants who have made a deal to testify for the state. Such informants present their own problems of reliability, but many prosecutions would be impossible without them.

Jailhouse informants are inmates, usually awaiting trial or sentencing, who hear another inmate make an admission about his own case. Reporting that admission to the authorities can provide the informant with an important bargaining chip in the informant’s case. It can even lead to the dropping of charges.

But why would anyone awaiting trial be stupid enough to talk about his case with a fellow inmate? The simple answer is that people in trouble need to talk. Even persons who have been arrested many times and advised repeatedly by their attorneys not to talk to the police still do so. So it is in jail.

That inmates talk to each other about their cases does not prove that any one jailhouse informant is telling the truth, however. Jailhouse informants have a significant incentive to lie. Corroboration of their testimony is difficult, as recent events have dramatically demonstrated. And even when the jailhouse informant is an otherwise implausible witness, the testimony can be powerful because it involves an admission of guilt by the defendant. Once you have heard that a defendant may have confessed, it is hard to put that out of your mind.

Although certainly useful, jailhouse confessions are not generally critical to the prosecution’s case. Most important evidence in a criminal case is in hand by the time of the defendant’s arrest--before any jailhouse informant becomes involved. Now the revelations about the district attorney’s use of jailhouse informants have raised serious questions about whether the office has exercised sufficient care in presenting their testimony. Controls on the use of such generally untrustworthy witnesses were lax, a variety of warnings about them went unheeded, and new crimes by informants were ignored.

The office has begun to address these questions by issuing new, stricter guidelines concerning jailhouse informants and by releasing more information to defense counsel about the past use of such people. It is also undertaking its own investigation.

This effort is aimed at discovering miscarriages of justice--whether innocent persons may have been convicted as a result of false informant testimony. Yet there is a larger and less tangible problem that must be addressed as well. It is the matter of public trust.

Our system of criminal justice trusts the prosecutor enormously. The prosecutor has great freedom in deciding whether to bring criminal charges and on what terms a case may be resolved. The presumption is that the prosecutor, with the greatest access to information and with the public’s interest at heart, is in the best position to make these decisions.

Every time the state calls a witness at trial, the prosecutor represents that the witness should be believed. The judge or the jury may disagree, but our presumption is that the prosecutor has exercised great care in deciding whether to present the witness.

With regard to jailhouse informants, there are indications that this was not always true. It appears that in this morally dangerous area our prosecutors have been careless. As a result, we feel that our trust has been betrayed. This is a harm potentially as significant as any lies told by jailhouse informants in the relatively small number of cases in which they were used.

In our system of government we trust no one entirely. Prosecutors are hedged in by judges, juries and defense attorneys. But we should never fool ourselves that these checks are enough. For all our boasts about being a nation of laws, the care and character of those who wield power is at least as important.

Thus the disclosures about jailhouse informants have been troubling not for what they have revealed about such witnesses but for what they suggest about the prosecutors who called them.