Jailhouse Informant Regulations
This model provides for greater transparency and disclosure during critical stages of litigation concerning the use of jailhouse informants or incarcerated witnesses. This includes requiring the state to disclose any benefit, such as a reduction of sentence, offered to the witness in exchange for their testimony. It also provides evidentiary standards regarding the admissibility of the testimony of such witnesses.
Section 1. Definitions.
- “Benefit” means any plea bargain, bail consideration, reduction or modification of sentence, or any other leniency, immunity, financial payment, reward, or amelioration of current or future conditions of incarceration in return for, or in connection with, the informant’s participation in any information-gathering activity, investigation, or operation, or in return for, or in connection with, the informant’s testimony in the criminal proceeding in which the prosecutor intends to call him or her as a witness.
- “In-custody informant” means a person, other than a codefendant, percipient witness, accomplice, or coconspirator, who provides testimony or information for use in the investigation or prosecution of a suspect or defendant based upon statements made by the suspect or defendant while both were housed within a correctional institution.
Section 2: An attorney representing the state shall track:
(a) The use of testimony or information provided to the state by an in-custody informant against a suspect or defendant’s interest while the in-custody informant was imprisoned or confined in the same correctional facility as the suspect or defendant.
(b) Any benefits offered or provided to an in-custody informant in exchange for testimony or information about a suspect or defendant.
Section 3: An attorney representing the state shall disclose to the defense in a timely manner before any evidentiary hearing or trial any information in the possession, custody, or control of the state that is relevant to the in-custody informant’s credibility, including:
- Benefits that the offering party has made or will make in the future to the in-custody informant;
- The substance, time, and place of any statement allegedly given by the suspect or defendant to the in-custody informant, and the substance, time, and place of any statement given by the in-custody informant to law enforcement implicating the suspect or defendant in the crime charged;
- The complete criminal history of the in-custody informant, including any charges that were dismissed or reduced as part of a plea bargain;
- All other cases in which the in-custody informant offered to provide information to or testify for the state in exchange for a benefit, and the specific benefits offered or received in such cases; and
- Whether the informant modified or recanted his or her testimony at any time.
Section 4: An attorney representing the state shall timely disclose its intent to introduce the testimony of an in-custody informant. The court shall conduct a hearing to determine whether the testimony of the in-custody informant is reliable. At this hearing, the court shall consider the factors enumerated in Section 3 as well as any other factors relating to reliability. If the prosecution fails to show by a preponderance of the evidence that the in-custody informant’s testimony is reliable, the court shall not allow the testimony to be heard at trial.
Section 5: If the in-custody informant testifies, the prosecutor or defense counsel may share the information in Section 3 during direct or cross-examination, respectively. If a written statement from the in-custody informant is admitted for a reason such as them being unavailable under the rules of the state or the Federal Rules of Evidence, this information shall be included with the written statement.