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More than 150 judges, prosecutors, defense attorneys and academics gathered at Yeshiva University’s Benjamin N. Cardozo School of Law in New York City last week to discuss what organizers described as a troubling “conundrum”: Is justice obtainable in a system that increasingly relies on deals struck with “cooperating witnesses” — or “criminal informants” — who barter false testimony in exchange for lenient treatment from prosecutors? Cardozo professor Ellen Yaroshefsky said that the ambitious all-day conference was the first opportunity for criminal justice professionals to debate policy issues surrounding the use of such informers. The event was sponsored by the law school, its Jacob Burns Ethics Center and the Cardozo Law Review. Yaroshefsky said that most prosecutors are convinced that many significant cases could not be made without the help of cooperating witnesses. They also believe that vigorous cross-examination, careful corroboration and other checks built into the system are sufficient to prevent wrongful convictions based on false testimony. However, stories in the popular media have reported “scores” of such miscarriages of justice, Yaroshefsky said. She called the reports “extremely troubling.” The whole problem is “grossly exaggerated,” said Shirah Neiman, deputy U.S. Attorney for the U.S. District Court for the Southern District of New York. She insisted that most informants signed up by her office tell the truth, and careful procedures catch mistakes before any damage is done. “What’s the alternative?” she said. “Trial by ordeal.” Loretta E. Lynch, U.S. Attorney for the U.S. District Court for the Eastern District of New York, agreed that potential informers are carefully screened. But she said reforms should be considered. “Informants are like airplanes,” she said. “They don’t crash very often, but when they do crash, it’s very bad.” Several speakers said that prosecutors have enormous power under a system in which mandatory minimum sentences and sentencing guidelines have cut into the discretion of judges. In the federal system, for example, prosecutors can request sentencing breaks for defendants who render “substantial assistance” to the government. U.S. District Judge Gerald E. Lynch, who sits in the Southern District of New York, pointed out that since few cases go to trial, “95 percent of defendants never get any trial other than the one they get in the prosecutor’s office.” Bennett L. Gershman of White Plains, N.Y.’s Pace University School of Law said that some prosecutors are motivated by “conviction psychology” instead of a desire to “do justice.” Witnesses have an incentive to lie, a trait that is encouraged by improper coaching of witnesses, “the dark or dirty secret of the American adversary system.” New York attorney Gerald Lefcourt complained that prosecutors’ officers do not turn over enough information to facilitate effective cross-examination of informants. “It’s the policy to make sure that defense attorneys are not fully prepared,” he said. Other speakers said prosecutors may be reluctant to turn over more than the bare minimum of information because they think it would be used by the defendant, who has as much incentive to lie as the informant, to concoct a story. COMMON SENSE? Some prosecutors and police investigators rely on “common sense” or their “gut” to tell them when an informant is lying. But Saul Kassin, a professor of psychology from Williams College, argued that “as a general rule, we are terrible human lie detectors.” Studies indicate that most people’s performance in discerning the truth is not significantly better than would be achieved by flipping a coin. “Experts,” such as FBI agents and judges, do not do much better. When all is said and done, however, “somebody has to tell who is telling the truth,” said Lynch. “Prosecutors are in a key position to do that.” To help them do a better job, panelists offered a variety of suggestions. Among them were better supervision and training, fuller documentation of plea negotiations including the use of videotaping, beefed up internal standards, additional court hearings to ferret out “tainted” testimony, more detailed instructions by judges to alert juries to the problems of informant testimony, tougher punishment for informants who lie, and a restriction, if not outright ban, on the use of jailhouse snitches.

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