Regulations considered for use of jailhouse informants

A bill that would require increased transparency in the use of jailhouse informants was considered by the Judiciary Committee March 6.

LB352, sponsored by Lincoln Sen. Adam Morfeld, would require each county attorney’s office to maintain a record of each case in which testimony is provided by a jailhouse informant and any benefit or plea deal offered to the informant.

Morfeld said the bill is an important measure that is needed to protect the innocent, crime victims, taxpayers and public safety.

“As you can imagine, the expectation for a reduced sentence or other benefits creates a strong incentive to lie, which can cause a tragic ripple effect in the criminal justice system,” he said. “Jailhouse witness testimony played a role in 159 wrongful convictions in the United States since 1989, harming innocent persons and allowing actual perpetrators to escape justice.”

If a prosecutor intends to use the testimony of a jailhouse informant, he or she would be required to provide certain information to the defense, including:
• the informant’s known criminal history;
• any benefit requested, offered or provided to the informant in exchange for testimony;
• the specific statements the defendant allegedly made to the informant that would be used against the defendant;
• other cases in which the informant testified or intended to testify; and
• any case in which the informant recanted testimony against a defendant.

If the court finds by clear and convincing evidence that disclosing such information to the defense would result in bodily harm to or coercion of the informant, the court could allow the prosecutor to redact some or all of the information.

Before testimony of a jailhouse informant would be used, the court would conduct a pre-trial hearing to determine the credibility of such testimony. If a prosecutor fails to show that the testimony is reliable, the court would not allow the testimony at trial.

Michelle Feldman, representing the Innocence Project, spoke in favor of the bill. She said jailhouse witnesses know how to game the system to get reduced sentences and other benefits.

“This bill would make sure that witnesses are telling the truth,” Feldman said. “It’s all about getting it right at trial, otherwise we can have an innocent person being convicted, a guilty person could go free and the victims and their families could be dragged through endless appeals.”

Also speaking in support of LB352 was Rebecca Murray, an associate professor of criminal justice. She said a number of studies suggest—and a number of exoneration cases confirm—that jailhouse testimony often is unreliable.

“This victimizes the person who is wrongly accused and has the potential to re-victimize individuals whose cases might depend on that testimony,” Murray said.

Opposing the measure was Corey O’Brien, speaking on behalf of the state attorney general’s office. The process for using jailhouse informant testimony was reformed in 2009, O’Brien said, with input from the Legislature and criminal defense attorneys.

“It is unclear … what has happened in Nebraska since 2009 that necessitates the changes sought in LB352,” he said. “There have not been cited any cases since 2009 where the use of jailhouse informant testimony resulted in an injustice or wrongful conviction.”

The committee took no immediate action on the bill.