As pro-prosecution as I am, I really can’t argue against requiring independent evidence of guilt to corroborate an inmate's testimony against a defendant.
JAILHOUSE INFORMANT BILL A TEST FOR JERRY BROWN
By Bob Egelko
San Francisco Chronicle
July 25, 2011
Testimony from a prisoner that a fellow inmate confessed to a crime can be powerful evidence of guilt. But a Bay Area legislator and a statewide commission say such testimony may also be self-serving and unreliable and can send innocent defendants to prison.
Now Gov. Jerry Brown must decide whether to ban California juries from convicting defendants based solely on jailhouse informant testimony. The bill, passed by the Legislature, is sponsored by defense lawyers and opposed by the statewide prosecutors' association - with the notable exceptions of the San Francisco and Los Angeles district attorneys, who support it.
Brown's decision, due by the end of the month, will be an early test of his views on contentious criminal justice issues. It could also breathe new life into a commission whose recommendations for changes in criminal investigations and trials were rejected by then-Gov. Arnold Schwarzenegger.
The Commission on the Fair Administration of Justice, established by the state Senate in 2004, was chaired by former Attorney General John Van de Kamp and included prosecutors, defense lawyers, law enforcement officers and academics.
Legislation it sponsored would have required police to tape-record interrogations of violent felony suspects, set guidelines for police lineups and made it easier for wrongfully convicted prisoners to get state compensation. Schwarzenegger vetoed each bill, largely at the urging of prosecution and police groups.
The current bill, SB687 by Sen. Mark Leno, D-San Francisco, is a new version of a measure that Schwarzenegger vetoed twice. Similar to laws in 17 other states, it would require prosecutors to present independent evidence of guilt to corroborate an inmate's testimony that the defendant confessed to a crime. State law already requires the judge to tell jurors to consider such testimony with caution, and requires the prosecution to disclose any promises of leniency it has made to the informant.
But the jury can still rely entirely on the testimony to issue a guilty verdict or a death sentence. And Leno and his allies say the law is ripe for exploitation by cons who can reduce their own sentences by fabricating cellmates' confessions.
Leno's office said studies have shown that perjured testimony was a common cause of wrongful convictions in California, and a 2005 Northwestern School of Law study found that such testimony was the leading cause of erroneous death penalty convictions in the United States.
In a letter endorsing Leno's bill, San Francisco District Attorney George Gascón said the measure "strikes a delicate balance" that allows prosecutors to use informant testimony with safeguards that "increase the legitimacy of this type of evidence."
But the California District Attorneys Association says the bill would do more harm than good.
Problems in "a very, very small number of cases" don't justify excluding an entire category of evidence, said Marty Vranicar, the association's assistant chief executive.
He said jurors can evaluate uncorroborated testimony with the current cautionary instruction. Barring all such testimony, Vranicar said, would hinder prosecution of jailhouse crimes, in which victims and eyewitnesses are often reluctant to talk and informants may be the only source of evidence.
Leno says such forecasts aren't borne out in Los Angeles, which has restricted informant testimony for years. In a statement issued through Leno's office, Los Angeles District Attorney Steve Cooley said the policy has made testimony more reliable and hasn't prevented convictions.
"When the wrong person is prosecuted, the guilty go free," Cooley said.
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