There is an excellent piece on FiveThirtyEight today by Maggie Koerth-Baker on why we should be more skeptical of incentivized informant testimony. Her post is called “Should We Trust Michael Cohen If He Flips On Trump?” and she examines the role informant testimony plays in wrongful convictions. It is a nice supplement to the great recent Faculty Lounge posts on false confessions by Laura Nirider and Brian Gallini. Koerth-Baker discusses a number of important recent academic studies on informant testimony as well as the tremendous work of Northwestern University Law School’s Center on Wrongful Convictions. Her post also brought to my mind one of the most famous episodes in the Watergate scandal.
Growing Public Awareness of False Confessions
The problem of wrongful convictions resulting from false confessions and mistaken identifications has received extensive media coverage. It is no mystery why. We continue to see across the country the belated exoneration of defendants who falsely confessed to crimes years or even decades ago. For example, earlier this month, New Jersey prosecutors dropped murder charges against two men who spent 24 years in prison after confessing to a crime they did not commit.
The publicity surrounding false confessions has prompted many states to adopt at least modest reforms. According to a new study in the International Journal of Police Science & Management, the number of states that require police officers to record custodial interrogations has risen from only 2 states in 2002 to 25 states in 2017. One can only hope that increased public pressure will force legislators around the country to implement still more reforms to prevent the terrible miscarriages of justice caused by false confessions.
The Less Well-Known Problem of False Informant Testimony
But the potential problems with informant testimony have received far less attention from journalists and state legislators. As Koerth-Baker points out, “the problems in incentivized witness testimony have largely flown under the radar.” This is true even though informant testimony represents a significant share of wrongful convictions. For example, in a 2015 study, Prof. Brandon Garrett found that of the 330 cases of convicts exonerated by DNA evidence, 24% involved informant testimony.
Moreover, it is entirely possible that the prevalence of false informant testimony is much greater than we realize. As Prof. Jessica Roth explained in a 2016 article in the American Criminal Law Review, “there are good reasons to believe that false informant testimony contributes to significantly more wrongful convictions than ever are discovered. That is because informant testimony is so pervasive in our criminal justice system, and it is most commonly used in the kinds of cases in which subsequent exoneration through DNA testing will be impossible because the cases do not involve biological evidence.”
Unfortunately, however, there is very little in the way of reform underway to address the problem of false testimony by informants. As Prof. Garrett explains, “[f]ew jurisdictions across the country have adopted any rules to better safeguard the reliability of informant testimony in response to these wrongful convictions. This problem of unreliable and contaminated informant testimony is one that still requires urgent attention.”
The Most Famous Informant in History
Of course, not all incentivized informant testimony is false. Informants can provide crucial evidence to convict guilty defendants. Probably the most famous and important incentivized informant in history was former White House Counsel John Dean, who provided testimony that ultimately brought down the Nixon Administration.
On June 25, 1973, during the Senate Watergate hearings, Dean testified that he and President Nixon had secretly discussed paying off the Watergate burglars to ensure that the defendants would not cooperate with prosecutors. Here is the key section of Dean’s Senate testimony:
“We had had conversations in early February or late February in which I tried to start telling him some of my own involvement. We had also had a discussion on March 13th about the money demands that were being made. At that time he discussed the fact that a million dollars is no problem. He repeated it several times. I can very vividly recall that the way he sort of rolled his chair back from his desk and leaned over to Mr. Haldeman and said, ‘a million dollars is no problem.’”
The problem was no one knew if Dean was telling the truth. The Nixon White House and Congressional Republicans claimed that Dean was lying to save himself from an obstruction of justice charge. In the absence of further evidence, it was the president’s word against Dean’s word.
But in the Watergate case, investigators ultimately discovered an objective source of evidence: the Oval Office audiotapes. The White House tape from the morning of March 21, 1973 vindicated Dean’s allegations and proved Nixon’s involvement in obstruction of justice. As the audiotape would later reveal, Dean began the conversation by warning the president of the administration’s legal exposure.
Dean: “We have a cancer--within, close to the Presidency, that’s growing. It’s growing daily. It’s compounding, it grows geometrically now because it compounds itself.”
Dean then went on to review the origins of the Watergate break-in and the crimes committed by members of the Nixon White House and reelection campaign. The crucial point in the tape comes when Dean moved on to the problem of the growing demands for money by the Watergate burglary defendants.
Dean: “Well, first of all, there’s the, there’s the problem of the continued blackmail [of the White House by the Watergate burglary defendants].”
Dean: “which will not only go on now, it’ll go on when these people are in prison, and it will compound the obstruction of justice situation. It’ll cost money. It’s dangerous. . . . people around here are not pros at this sort of thing. This is the sort of thing Mafia people can do: washing money, getting clean money, and things like that, uh—we’re--we just don’t know about those things, because we’re-not used to, you know--we are not criminals and not used to dealing in that business.”
. . . .
Nixon: “That’s right.”
Dean: “It’s [a] tough thing to know how to do.”
Nixon: “Maybe we can’t even do that.”
Dean: “That’s right. It’s a real problem as to whether we could even do it. Plus there’s a real problem in raising money. . . [Former Nixon Attorney General John] Mitchell has been working on raising some money. . . . he’s one of the ones with the most to lose. . . but there’s no denying the fact that the White House, and . . . [senior White House policy adviser John] Ehrlichman, [White House chief of staff Bob] Haldeman, Dean are involved in some of the early money decisions.”
Nixon: “How much money do you need?”
Dean: “I would say these people are going to cost, uh, a million dollars over the next, uh, - two years.”
Nixon: “We could get that.”
Dean: “Uh, huh.”
Nixon: “You, on the money, if you need the money, I mean, uh, you could get the money. Let’s say--”
Dean: “Well, I think that we’re going . . .”
Nixon: “What I mean is, you could, you could get a million dollars. And you could get it in cash. I, I know where it could be gotten.”
Dean: “Uh, huh.”
The whole transcript is available at the Nixon Library and it’s an engrossing read. In addition, a 20-minute excerpt of the actual audio tape from Nixon and Dean’s fateful March 21 conversation is available here at the University of Virginia’s Miller Center website.
How to Test an Informant
One of my favorite Watergate stories is how Sam Dash, a Georgetown Law Professor who served as the chief counsel to the Senate Watergate Committee, used the discovery of the tapes’ existence as a way to test the veracity of John Dean’s testimony.
During an interview with the committee staffers on Friday, July 13, 1973, former senior White House staffer Alexander Butterfield revealed the existence of the audio tapes, and the stunning fact that they were voice-activated, which meant they taped everything said in the Oval Office. The news hit the committee like a thunderbolt. However, at that point, Nixon still had exclusive control of the tapes, so Dash and the committee did not know what the tapes contained.
But Dash recognized that the news of the tapes’ existence gave him an opportunity to test Dean’s truthfulness.
As the historian Fred Dean explains in his great book, Watergate: The Corruption of American Politics and the Fall of Richard Nixon:
“Dash took the precaution that Saturday [July 14, the day after Butterfield’s interview] of testing the revelation’s impact on the one man it could make or break—John Dean. One of Dash’s assistant counsels, James Hamilton, remembers standing by the fireplace at Dean’s home so as to gauge his reaction when Dash told him: ‘I never will forget it. John broke into this huge smile. This beaming smile because he knew after all the work he’d done and his testimony and all the thought he’d given to what he had to say that he was right and he was convinced that . . . the tapes would bear him out.’”
Indeed, the tapes bore out Dean’s testimony in dramatic fashion, albeit only after a 12-month legal battle over executive privilege that finally ended with the Supreme Court’s historic United States v. Nixon ruling, which forced the president to turn the tapes over to Watergate investigators. Two weeks later, on August 9, 1974, Nixon resigned.
The Critical Role of Corroborating Evidence
Needless to say, most cases dependent on informant testimony don’t have corroborating evidence like the Watergate tapes.
Accordingly, it is crucially important that judges engage in a searching examination of the corroborating evidence offered by prosecutors, not just in the Russia probe but in all criminal cases.
As Professor Roth argues in her article:
“courts should be more careful about admitting informant testimony about oral communications, especially coconspirator statements that are not electronically recorded. One possible fix would be to provide the defendant against whom the statements are offered the opportunity to show that the declarant, or the circumstances in which the statement was made, indicate a lack of trustworthiness. The rules of evidence explicitly provide such an opportunity for many other types of evidence deemed potentially unreliable. Even absent a formal amendment to the rules, courts could, in their discretion, make such an inquiry.”
Professor Roth has many other proposed reforms to the problems posed by informant testimony. You can find her American Criminal Law Review article, “Informant Witnesses and the Risk of Wrongful Convictions,” here. Professor Garrett’s book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, is available here on Amazon and his 2015 article updating the statistics is available here. And the FiveThirtyEight story by Maggie Koerth-Baker is available here.
Whether Michael Cohen will become the John Dean of our time remains to be seen. But Koerth-Baker is right to remind us that we should view testimony by any alleged co-conspirator with skepticism until we see corroborating evidence. Even in Dean’s case, he did not get all the facts exactly right in his testimony. For example, contrary to Dean’s recollection, the date of the crucial meeting with Nixon was March 21, not March 13.
Watergate reminds us that even when an informant is telling the truth, errors creep in. Corroborating evidence is thus indispensable to any case involving informant testimony, even one involving the president’s closest advisers.