Every defense attorney knows that jailhouse informants are the scourge of confession cases: the defendant who is too clever by half, who refuses to talk to cops and invokes his right to a lawyer, but brags to his cellie about how he “totally did that punk in”. Despite jailhouse informants being the cause of 15% of wrongful convictions, juries still lap that stuff up. For some reason, we as humans cannot escape the psychological pull of a confession – purported or otherwise.
Since trial lawyering is some parts art, some parts science and mostly blind dumb luck, trial lawyers have forever come up with artful ways of countering the appeal of a jailhouse informant and the defendant’s alleged confession: expert testimony, artfully crafted jury instructions and fearsome cross-examination.
The Jury Expert (which you should subscribe to and read very regularly) has this fantastic post today about the science of dealing with jailhouse informants. The post examines two studies conducted in which mock jurors were given various scenarios. Here’s a brief description of one of them:
Regarding appropriate recognition of the presence of an incentive, results indicated clear awareness of the presence of the incentive, as participants correctly identified this condition over 90% of the time (Neuschatz et al., 2008). Eighty-five percent of participants attributed the testimony of the cooperating witnesses to internal factors (i.e. guilt, feeling sorry for the family, etc.) or both internal and situational factors (i.e. reward, leniency, etc.) compared to only 15% of participants attributing the testimony to solely situational factors. Cumulatively, it seems clear that participants were aware of the presence of an incentive, yet were able to disregard the situational incentive to testify, instead focusing on dispositional attributions as a reason for the testimony. Again no significant differences in verdict decision were found between the “incentive” and “no incentive” conditions, suggesting that jurors ignored the motivation cooperating witnesses may have had to fabricate their testimony in exchange for a reward, and instead relied on dispositional attributions of trustworthiness and honesty to accept the testimony at face value.
In further support of how impactful secondary confession evidence can be, it is important to note that within this study the secondary confession evidence was presented in an otherwise extremely weak case, as evidenced by the fact that in the control condition, participants as a whole voted guilty only 26 percent of the time (Neuschatz et al., 2008). However, when secondary confession evidence was presented, participants as a whole rendered guilty verdicts 71 percent of the time.
So just how effective are the defense counters to this problem? First up, expert witnesses. And the answer is nope:
However, as presented in Neuschatz et al. (2012), a study utilizing mock jurors to test this exact premise found no difference in the number of guilty verdicts rendered when comparing the experimental (expert witness) and control (no expert witness) conditions.
Okay, well, jury instructions that tell jurors to carefully consider and examine the motivations of jailhouse informants for testify surely help. You’d think, but nope:
However, it has been shown throughout the literature that cautionary instructions likely have little effect on verdicts rendered (Neuschatz, Jones, Wetmore, & McClung, 2012). As an example, a meta-analysis of 48 studies examining judicial instructions to ignore inadmissible evidence in juror verdict decisions found that juror verdicts did not vary with the presence of cautionary instructions, deeming such instructions ineffective (Steblay, Hosch, Culhane, & McWethy, 2006).
Oh. Well, how about that bastion of lawyering: the cross-examination that decimates? Yeah, no:
A final solution was for lawyers to more effectively cross-examine these cooperating witnesses in an effort to make their motivations to gain leniency or some other reward more salient to jury members (Cassidy, 2004; Mazur, 2002). At that time, it was thought that if the jury were made explicitly aware of a cooperating witness’ incentive to testify (leniency or reward) or testimony history, then the jury would be more likely to discount testimony (most oftentimes secondary confessions) provided by that witness. However, Neuschatz et al. (2008) as well as Neuschatz et al. (2012) provided evidence suggesting that neither incentive nor testimony history have a significant impact on juror verdict decisions.
One possibility not covered by the studies is California’s recent legislation that simply takes the issue out of the hands of these gullible, unreliable juries by requiring corroboration of jailhouse confessions. But that hasn’t caught on yet anywhere else, so the rest of us are left to deal with some dismal statistics on the proclivity of juries to rely on obviously questionable confessions.
The post suggests getting better at jury selection, by weeding out jurors who are so predisposed to believing any confession. It identifies two types of jurors who might want to be avoided and suggests questions that might be asked to identify them:
Through the use of juror questionnaires and peremptory challenges, one can apply social science knowledge in assisting with de-selecting individuals who may be most likely to believe a JI or fall victim to the fundamental attribution error. We highlight two potentially useful juror characteristics to consider measuring in the jury panel members: dogmatism and need for cognition.
For dogmatic jurors, the following questions are suggested:
- In this complicated world of ours the only way we can know what’s going on is to rely on leaders or experts who can be trusted.
- My blood boils whenever a person stubbornly refuses to admit he’s wrong.
- There are two kinds of people in this world: those who are for the truth and those who are against the truth.
- Most people just don’t know what’s good for them.
- Of all the different philosophies that exist in this world there is probably only one that is correct.
I don’t want to give away their work, so make sure you click on the link and go read the whole thing in its entirety.
Of course, many judges may not permit questioning of this nature and if that’s the case then you might have to find more subtle ways of eliciting the same biases.
We, trial lawyers, spend a lot of time thinking about the facts of a case and not enough time thinking about the lay person would perceive those facts. We need to be more aware that our biases and lenses for viewing the world are not universal and figure out ways to counter our own spin. We’ve all had cases where the facts seem to indisputably point one way only for the jury to do something completely different. Everyone is stumped and walks away shaking their head muttering something about “damn juries”, but maybe the fault lies in our inability to understand what motivates other people.
If we want to become better at representing individuals whose liberty is our responsibility, we need to get better at understanding the people who will judge them.