Brady and Jailhouse Informants

Abstract

Hardly a month goes by when there is not news of another defendant who, after a lengthy incarceration, is exonerated based on DNA evidence. Investigation into exonerations reveals that uncorroborated jailhouse informant testimony and the concealment of exculpatory evidence required to be disclosed to the accused under Brady v. Maryland and prevailing ethical rules are major contributing causes of wrongful convictions. When combined, false jailhouse informant testimony and the prosecutor's obligations under Brady sidetrack procedural justice whenever they occur and, when the accused is factually innocent, lead to the denial of substantive justice by convicting the innocent. In this article, the author explores these causes of wrongful convictions, their legal, ethical, and societal ramifications, and offers a number of pragmatic measures that prosecutors, defense lawyers, and judges can take immediately to respond to the injustice of false jailhouse informant (snitch) testimony and Brady violations.

The author begins with a short discussion of the problem of wrongful convictions and the roles that false snitch testimony and prosecutorial misconduct play in convicting the innocent. In order to shape effective remedies to prevent wrongful convictions, it is necessary to understand the scope of the problem and the nature of causes of wrongful convictions. The author then outlines a number of realistic measures that head prosecutors, trial and appellate judges, and defense lawyer should take to prevent false snitch testimony and Brady violations. The author's goal in outlining these practical, low cost or no-cost recommendations to counter the prejudicial effects of snitch testimony and Brady violations is to generate interest by the countless good prosecutors, defense lawyers, and judges who could prevent wrongful convictions through their daily work.

Keywords: jailhouse informants, Brady v. Maryland, snitch, Brady violation, exculpatory evidence, wrongful conviction, exoneration, DNA, prosecutor, prosecutorial misconduct, norms