Howard Finkelstein (Melanie Bell)
State prosecutors have been stripped of their discretionary power under a new rule that lifts the curtain on jailhouse snitches, long a major source of false testimony in criminal cases.
The Florida Supreme Court on Thursday amended the state’s Rules of Criminal Procedure by adopting a 2012 recommendation from the Florida Innocence Commission, which was created by then Chief Justice Charles Canady in 2010.
The rule change adds “informant witnesses” to the category of witnesses whom prosecutors must disclose to the defense. It obligates prosecutors to disclose “any material or information that has been provided by an informant.”
• The substance of any statement allegedly made by the defendant.
• A summary of an informant’s criminal history.
• The time and place of the defendant’s alleged statement.
• The terms of any deal made with an informant for testimony.
• The informant’s history of cooperation.
“This information is readily available to the prosecution and will not be overly burdensome to disclose,” the court said.
The Supreme Court, acting unanimously in an unsigned opinion, cited the Innocence Commission’s findings as its reason for the change. Informant perjury was a factor in nearly 50 percent of wrongful murder convictions and 46 percent of exonerations for death row inmates.
Jailed informants testified in over 15 percent of wrongful conviction cases later overturned through DNA testing.
Jeff Marcus, chief assistant to Broward State Attorney Mike Satz, suggested the rule would have little impact in the county because it formalizes a process already in place.
“Informant witnesses are rarely used in criminal trials. When they do testify, defense attorneys routinely obtain all of the background information mentioned in this opinion through disclosures made by the state under existing law and/or depositions. This Supreme Court of Florida opinion merely clarifies the current state of the law and helps facilitate the process of disclosure,” Marcus said.
Broward Public Defender Howard Finkelstein took a contrary position.
“This is an incredibly important opinion. For decades, prosecutors and police have been able to shroud cases involving deceit by keeping jailhouse informants confidential,” he said. “What the court is saying is we are no longer going to allow prosecutors to be the only gatekeeper to the information and determine if that information is relevant.”
The television crime drama stereotype of a jailhouse snitch is a career criminal using his access to a defendant as leverage for leniency. While informants may have or pretend to have information about a broad spectrum of crimes, Finkelstein said they are most prevalent in drug possession and trafficking cases.
“Anybody around in the 1980s and ’90s who tried a lot of drug cases, suffice it to say that police got very good at making a horse look like a pig, and there was really no way to prove it really was a horse,” Finkelstein said. “This is the area, more than any other area in the law, where lies result in innocent people being convicted,” he said.
The main concern has been detained informants, but the rule change addresses all informants. Finkelstein said opening the door to a relationship between law enforcement and street informants could assist defense attorneys in exposing entrapment.
When the Innocence Commission considered a remedy, it looked at four options—requiring independent corroboration of informant testimony, cautionary jury instructions, pretrial reliability hearings or information disclosure by the prosecutor.
After the commission submitted its recommendations, the court referred the matter to its criminal court steering committee. The committee concluded that an amendment was not needed. And the Florida Bar criminal procedure rules committee agreed such a change was unnecessary.
The Supreme Court disagreed with both committees “because informant witnesses are not currently specifically treated under the rule and they constitute the basis for many wrongful convictions.”
Rory Stein, executive assistant public defender and general counsel to Miami-Dade Public Defender Carlos Martinez, said the office is gratified the court implemented the Innocence Commission recommendation.
The new rule will give juries a more complete picture of informant witnesses, he said.
“Given the incidence of wrongful convictions resulting from the use of false informant testimony, the new rule constitutes a significant step in the court’s effort to provide a forum where justice may be obtained,” Stein said.
The state attorneys for Miami-Dade and Palm Beach counties did not respond to requests for comment by deadline.