The National Registry of Exonerations has added a code that identifies cases in which the evidence against the exoneree included testimony by a jailhouse informant—a witness who was in custody with the exonerated defendant and who testified that the defendant confessed to him.
“Jailhouse snitch” testimony, as it is commonly known, is notoriously unreliable because the incarcerated witnesses are strongly motivated to say what the prosecution wants, usually because they get substantial reductions in their own sentences in return. This problem has been in the news lately. Cameron Todd Willingham was executed for murder by arson in Texas in 2004 based on forensic evidence that was later discredited, and testimony from a jailhouse informant. That informant recently came forward to say that his testimony was false and was procured by a secret deal with the prosecutor. And in Orange County, California, the District Attorney is under fire because an aggressive, illegal and secret program of using jailhouse informants in murder prosecutions has come to light.
To find the jailhouse informant cases in the Registry, go to the Detailed View under the Browse Cases tab, place the cursor over the heading “Tags” in the heading bar above the list of cases, click on the down arrow that appears and choose “JI” (“Jailhouse Informant”) from the drop-down menu.
Eight percent of all exonerees in the Registry were convicted in part by testimony from jailhouse informants, 119 out of 1,567. They are concentrated among the worst crimes: 102 out of 119 are murder cases, 15%, of all murder exonerations, compared to 2% of all other exonerations (17/900). Among murders, the more extreme the punishment, the more likely we are to see a jailhouse informant, ranging from 23% of exonerations with death sentences to 10% of murder cases in which the defendant received a sentence less than life in prison. See Table 1.
This pattern makes sense. There is more at stake in prosecutions for murder than for lesser crimes—and more yet among the minority of highly aggravated murders that get sentences of life without parole or death—so the authorities appear to be more willing to cut deals or do other favors for prisoners in return for testimony, which can easily lead to perjury.
There is one noteworthy pattern among the few exonerations in which jailhouse informants helped convict innocent defendants for lesser crimes than murder: they are much more likely to testify in federal than in state cases. About 10% of federal exonerations in non-murder cases included jailhouse informant testimony (8/81), compared to 1% of non-murder exonerations in state courts (9/819). We can’t generalize from this small number, especially since four of the eight federal informant exonerations were in a single four-defendant drug prosecution, but it suggests that trials for crimes other than murder are more likely to include jailhouse informants if they take place in federal court.
- Samuel Gross & Kaitlin Jackson
National Academy Releases Report on Eyewitness Identification
On October 2, 2014, the National Research Council of the National Academy of Sciences released a report entitled Identifying the Culprit: Assessing Eyewitness Identification. This is an important document, but not because it breaks new ground. Instead, it does an excellent job of summarizing what we do and do not know about eyewitness identification testimony, and it offers recommendations on how to collect and use eyewitness identification evidence in cases in which a criminal’s identity is in dispute.
The care and detail of the Report, the distinction and the wide range of experience of the members of the committee that wrote it, together with the prestige of the National Academy, may make it uniquely influential.
The Report recommends that police use procedures designed to protect eyewitness memories from contamination, and to collect information about the reliability of witness identifications. Specifically, the Report recommends that police departments:
The Report also recommends that judges take steps to assess the value – and possible dangers – of eyewitness identifications by conducting pretrial inquiries about eyewitness identifications regardless of whether one of the parties raises an objection to the admissibility of the evidence. In the same vein, the Report recommends that judges make juries aware of the pitfalls of eyewitness identification by admitting expert witness testimony, requiring detailed evidence of the circumstances of identifications, and giving jury instructions on how to evaluate eyewitness testimony.
Finally, the Report calls for better data collection and more scientific research. In particular, the Report finds that existing research does not support a conclusion one way or the other on the comparative value of sequential lineups – in which the people or pictures are presented one at a time – as compared to the older and more common practice of simultaneous lineups, in which a witness is shown a line of several people or an array of photographs all at once. The Report recommends additional and better studies comparing these two procedures. The Report also recommends the creation of a National Research Initiative on Eyewitness Identification to coordinate future research and help make use of its findings.
As of October 14, 2014, 35% of the exonerations in the Registry include mistaken eyewitness identifications, 509 cases out of 1446. The distribution of all known exonerations that include mistaken eyewitness identifications by category of crime is displayed in these graphs, and was discussed in a recent Registry newsletter.
- Kaitlin Jackson & Samuel Gross
Trends and Patterns
Only 8% of the exonerees we know about are women (119/1,432), about the same proportion as female prison inmates in the United States.
There are two major, interrelated differences between female exonerees, as a group, and male exonerees.
Child victims: 40% of the women in the Registry (47/119) were exonerated of crimes with child victims, compared to only 22% of male exonerees (293/1,313). Most of these women were convicted of child sex abuse – 22%, compared to 11% of male exonerees – but none were convicted of sexual assault on an adult. In addition, nearly 30% of female homicide exonerees were convicted of killing children (15/51), but only 17% of male homicide exonerees (105/601).
Nonetheless, men account for 86% of exonerations with child victims because male exonerees outnumber females by 11 to 1.
No-crime cases: 63% of female exonerees were convicted of crimes that never occurred (75/119), three times the rate for men (21%, 271/1313). Seventy-five percent of female no-crime exonerations involved violent crimes (56/75); and in three-quarters of those cases the supposed victims were children (42/56).
Nearly 90% of women exonerated of crimes against children were convicted of violent crimes that never happened (42/47). Nearly 70% of these cases were in two comparatively uncommon categories:
- Child sex abuse hysteria cases. None of the 26 women exonerated in a child sex abuse case was convicted of a crime that actually occurred. (By comparison, 27% of men exonerated in child sex abuse cases were convicted of actual crimes that other men committed.) The major reason is that 80% of these women (21/26) were exonerated in "child sex abuse hysteria" cases.
From the mid-1980s to the mid-1990s, some prosecutors and child welfare workers around the country became convinced that people caring for children, often day care workers and school employees, were sexually abusing those children on a massive scale. More than a hundred defendants were convicted as a result, often based on accusations including bizarre, unsubstantiated and highly improbable satanic rituals. The Registry lists 51 child sex abuse hysteria exonerees, 21 women and 30 men; all were convicted of crimes that never happened. They make up 0.2% of exonerations of men, but 28% of exonerations of women.
The most recent child sex abuse hysteria conviction in the Registry occurred in 1995. Since then, only one woman has been exonerated for any crime involving child sex abuse.
- Shaken Baby Syndrome cases. Twelve exonerations involve "Shaken Baby Syndrome" or SBS (now called "Abusive Head Trauma"). In almost all, the exonerees were convicted on a now widely discredited theory that violent shaking of infants can produce immediate and extreme neurological damage or death without external or skeletal injuries. It now appears that these deaths and injuries were caused by unrelated accidents or undiagnosed pathologies.
Two-thirds of SBS exonerees are women (8/12), which is hardly surprising. One implication of the theory of SBS is that the infant was injured or killed by shaking by the last adult who took care of the child before medical personnel intervened, and women do the vast majority of the work of caring for infants.
Five additional women were exonerated after convictions for killing children who died by accidental means unrelated to claims of shaking.
A terrible consequence of these trends is that some innocent mothers –Teresa Engberg-Lehmer and Nicole Harris, for example –must grieve for children who died of accidental or natural causes, while in prison for killing those children themselves.
In sum, while most female exonerees were falsely convicted of violent crimes against adult victims, or of non-violent crimes, a substantial and disproportionate minority were convicted of violent crimes against children, usually violent crimes that never happened. Judging from known exonerations, women are the likely victims of false convictions for violent crimes that are believed to have been committed by care-takers in roles that are overwhelmingly filled by women – as parents and other family care givers, and as day care workers and teachers of young children.
- Kaitlin Jackson & Samuel Gross