SNITCHES, RATS, AND MARTYRS
A major topic of discussion in law enforcement circles these days is the increasing public dislike of "snitches." (For the clearest possible example, see Who's a Rat.com) Rap music and t-shirts counsel the public "don't be a snitch." And witnesses are subjected to intimidation of the most vicious and dangerous kind as a result. "Nobody likes a tattle-tale," we are told, as we were once advised in first grade.
We are placed in a difficult conflict, because, on one hand, anyone who follows criminal prosecutions at all closely knows that prosecutors rely heavily on "confidential informants" whose background is, at best, no better than that of the defendants they help to convict, and whose incentive to inform usually has a lot more to do with promises of leniency than with civic-mindedness. And on the other hand, we have all heard horrifying tales of witnesses of crime being intimidated, assaulted, and even killed to keep them from testifying.
The conflict arises out of the fact that we are really looking at two different phenomena, which require two very different moral responses. The "confidential informant" is almost always a criminal himself, often a higher-ranking criminal than the defendants he helps to convict. That's how he comes by the information the prosecutors need. And the prosecutors have trouble acquiring the information by any other means because either the crime in question is a "victimless" one, usually a transaction between a willing buyer and a willing seller, or the organization that perpetrates the crime has really tight internal security (for instance, the code of omerta' for which the Cosa Nostra is famed.) The other reason the prosecutors have an incentive to get their information from criminal colleagues of the defendant is that such informants have a strong incentive to cooperate--immunity from or at least leniency in their own prosecutions. Which means in turn that the information they provide may or may not be accurate or complete. The incentive to inform is also an incentive to lie or invent. It is, above all, an incentive to give the prosecutors what they want. And the prosecutors wouldn't need the informant's information at all if they had any other way to get at it, so they can't cross-check its accuracy, by definition. So using "confidential informants" is morally and legally questionable, and being a CI is even more so.
"Snitches" exist at all levels of the criminal world, from the pettiest local mopes to the upper reaches of the Mafia. Their rewards range from an occasional twenty-dollar bill to immunity from prosecution for murder. The "Don't Be a Snitch" t-shirts may be effective at the low end, where the stakes and rewards are small. Probably they matter not at all to Joe Valachi and his successors.
But none of that has anything to do with the plight of the innocent civilian witness, the person who happens to be in the wrong place at the wrong time when a drug deal or an assault or a murder is going down. When I was in my first job out of law school, running a legal aid office in a fairly rough ethnic neighborhood, my secretary came to me one day to tell me that she and her husband had seen a murder the night before. "Does this mean I'm going to get in trouble?" she asked me. It took me a while to figure out what she was talking about. Was she going to be questioned by the police? she meant. Would they threaten her in some way if she didn't tell them what they wanted to hear? Could she be held as a material witness? And could she be threatened by the shooter or his friends? All I could recommend was that, if the police contacted her for questioning, she should call me immediately before telling them anything. That was thirty years ago. If anything, the plight of the innocent civilian witness has gotten a lot worse since then. The scholar will remind you that, in the original Greek and in Arabic, the word "martyr" means "witness." That is not an accidental link.
The fact is that nobody likes an innocent civilian witness. Cops and prosecutors don't like them because, from the point of view of the prosecutorial process, they're loose cannons. They have no incentive to testify, or to testify in any particular way, other than their own civic-mindedness. The legal system has nothing to offer them. It can, on occasion, threaten them (with being held as a material witness, or being subpoenaed and being held in contempt for refusing to testify.) A case dependent only on evidence from innocent civilian witnesses is generally regarded by prosecutors as unwinnable, no matter how strong that evidence may be.
Criminals don't like innocent civilian witnesses for pretty much the same reason--they can't be bought. They can, increasingly, be intimidated, and of course they can always be assaulted, their houses burned down, and worse. We are unlikely ever to know how effective these tactics are, since by definition their success means utter lack of public information. But most witness protection programs are not even available to innocent civilian witnesses, and anything short of a complete identity transplant is likely to be inadequate. If there is one thing the average resident of a high-crime neighborhood knows with absolute certainty, it is that the police cannot protect anyone.
So on one hand, the criminal justice system needs to get rid of its dependence on "confidential informants" in victimless-crime cases, and on the other hand, it needs to find ways to protect innocent civilian witnesses in violent crime cases. This is the only way law enforcement can rehabilitate its own questionable reputation in the communities it is supposed to be protecting.
We are placed in a difficult conflict, because, on one hand, anyone who follows criminal prosecutions at all closely knows that prosecutors rely heavily on "confidential informants" whose background is, at best, no better than that of the defendants they help to convict, and whose incentive to inform usually has a lot more to do with promises of leniency than with civic-mindedness. And on the other hand, we have all heard horrifying tales of witnesses of crime being intimidated, assaulted, and even killed to keep them from testifying.
The conflict arises out of the fact that we are really looking at two different phenomena, which require two very different moral responses. The "confidential informant" is almost always a criminal himself, often a higher-ranking criminal than the defendants he helps to convict. That's how he comes by the information the prosecutors need. And the prosecutors have trouble acquiring the information by any other means because either the crime in question is a "victimless" one, usually a transaction between a willing buyer and a willing seller, or the organization that perpetrates the crime has really tight internal security (for instance, the code of omerta' for which the Cosa Nostra is famed.) The other reason the prosecutors have an incentive to get their information from criminal colleagues of the defendant is that such informants have a strong incentive to cooperate--immunity from or at least leniency in their own prosecutions. Which means in turn that the information they provide may or may not be accurate or complete. The incentive to inform is also an incentive to lie or invent. It is, above all, an incentive to give the prosecutors what they want. And the prosecutors wouldn't need the informant's information at all if they had any other way to get at it, so they can't cross-check its accuracy, by definition. So using "confidential informants" is morally and legally questionable, and being a CI is even more so.
"Snitches" exist at all levels of the criminal world, from the pettiest local mopes to the upper reaches of the Mafia. Their rewards range from an occasional twenty-dollar bill to immunity from prosecution for murder. The "Don't Be a Snitch" t-shirts may be effective at the low end, where the stakes and rewards are small. Probably they matter not at all to Joe Valachi and his successors.
But none of that has anything to do with the plight of the innocent civilian witness, the person who happens to be in the wrong place at the wrong time when a drug deal or an assault or a murder is going down. When I was in my first job out of law school, running a legal aid office in a fairly rough ethnic neighborhood, my secretary came to me one day to tell me that she and her husband had seen a murder the night before. "Does this mean I'm going to get in trouble?" she asked me. It took me a while to figure out what she was talking about. Was she going to be questioned by the police? she meant. Would they threaten her in some way if she didn't tell them what they wanted to hear? Could she be held as a material witness? And could she be threatened by the shooter or his friends? All I could recommend was that, if the police contacted her for questioning, she should call me immediately before telling them anything. That was thirty years ago. If anything, the plight of the innocent civilian witness has gotten a lot worse since then. The scholar will remind you that, in the original Greek and in Arabic, the word "martyr" means "witness." That is not an accidental link.
The fact is that nobody likes an innocent civilian witness. Cops and prosecutors don't like them because, from the point of view of the prosecutorial process, they're loose cannons. They have no incentive to testify, or to testify in any particular way, other than their own civic-mindedness. The legal system has nothing to offer them. It can, on occasion, threaten them (with being held as a material witness, or being subpoenaed and being held in contempt for refusing to testify.) A case dependent only on evidence from innocent civilian witnesses is generally regarded by prosecutors as unwinnable, no matter how strong that evidence may be.
Criminals don't like innocent civilian witnesses for pretty much the same reason--they can't be bought. They can, increasingly, be intimidated, and of course they can always be assaulted, their houses burned down, and worse. We are unlikely ever to know how effective these tactics are, since by definition their success means utter lack of public information. But most witness protection programs are not even available to innocent civilian witnesses, and anything short of a complete identity transplant is likely to be inadequate. If there is one thing the average resident of a high-crime neighborhood knows with absolute certainty, it is that the police cannot protect anyone.
So on one hand, the criminal justice system needs to get rid of its dependence on "confidential informants" in victimless-crime cases, and on the other hand, it needs to find ways to protect innocent civilian witnesses in violent crime cases. This is the only way law enforcement can rehabilitate its own questionable reputation in the communities it is supposed to be protecting.
posted by WiredSisters at 9:41 AM
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