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53 Am. Crim. L. Rev. 737 (2016)
Informant Witnesses and the Risk of Wrongful Convictions

handle is hein.journals/amcrimlr53 and id is 746 raw text is: INFORMANT WITNESSES AND THE RISK OF WRONGFUL CONVICTIONS Jessica A. Roth* ABSTRACT Several studies in the last two decades have revealed that false criminal informant testimony is a leading factor in wrongful convictions, along with false confessions, eyewitness misidentification, and faulty forensic science. Although a great deal more remains to be done, many jurisdictions have implemented evidence-based reforms to these last three categories of evidence. Policy about criminal informants, however, seems to be stubbornly stagnant, and relevant social science is virtually nonexistent. This Article questions the relative lack of attention to informant testimony and suggests that the dangers posed by informant testimony are both greater and different than previously thought. Unlike much of the prior literature on the subject, this Article carefully distinguishes between jailhouse informants and other types of informant witnesses, especially accomplices. Al- though both categories of informants pose some of the same risks to the reliability of proceedings, accomplice witnesses pose additional risks-many enabled by rules of evidence, trial practices, and psychological phenomena-that have not yet been fully appreciated in the literature. After identifying these concerns, this Article concludes with recommendations for reform--and areas requiring further study-with the aim of developing a set of evidence-based best practices for the use of informant testimony. INTRODUCTION Since 1989, DNA evidence has been used to exonerate at least 341 individuals, in at least thirty-seven states, of crimes of which they were previously convicted.' In many of these cases, the exonerees served decades in prison or were sentenced to death before they were released.2 These DNA exonerations have changed the face of criminal justice in the United States.3 No longer is the prospect of an * Associate Professor of Law, Benjamin N. Cardozo School of Law. I am grateful to Miriam Baer, Richard Bierschbach, Kyron Huigens, Lauren Ouziel, Daniel Richman, Alex Stein, Ekow Yankah, and Ellen Yaroshefsky for very helpful comments on earlier drafts of this paper; and to the participants of the CrimFest 2015 Conference at Cardozo Law School, where this Article was presented as a work in progress, especially Erin Collins, Keith Findley, Bruce Green, Dan McConkie, Anna Roberts, and Jenia Iontcheva Turner. © 2016, Jessica A. Roth. 1. See INNOCENCE PROJECT, http://www.innocenceproject.org (last visited May 24, 2016). 2. See BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS Go WRONG 5 (2011) (reporting that, of the first 250 DNA exonerees, eighty were sentenced to life in prison; seventeen were sentenced to death; and the average exoneree served thirteen years in prison). 3. See id. at 6.

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