Whistleblowers are cost-effective because they require little effort. In most cases, they cooperate on leniency in their own pending cases. Because whistleblowers often have inside information, they can be useful in creating cases that would otherwise require months of investigation. Although Texas and other states are now pursuing the use of informants, district prosecutors are keeping records and only Connecticut will maintain a national system, Innocence Project lawyers said. One problem, they said, is that prosecutors in one county may not know the testimony of an informant in other counties. The investigation stems from questions about the county`s use of informants raised five years ago by a public defender representing Scott Dekraai, the man currently serving a life sentence for killing eight people at a hair salon in Seal Beach, California. The misuse of an informant in Dekraai`s case prompted a judge to abolish the death penalty as a possible punishment for murder. The cost-benefit ratio of whistleblowers is to some extent diminished by credibility issues. For example, in jury jurisdictions, acquittals occurred in major organized crime cases because jurors simply did not believe the testimony of informants. This may be the case if the government has paid the informant, which happens in some jurisdictions.
In the case of informants who were not part of an organized criminal group, there is also concern that their identity may eventually be known (Simons, 2003; Werner, 2014). Most informants are criminals who cooperate with police in exchange for a reduced charge, sentence or immunity from prosecution, depending on the justice system. However, in some cases, honest citizens simply want to report wrongdoing. In any case, informants often want to remain anonymous. Many courts have ruled that an informant`s identity may remain confidential, but not universally. In some jurisdictions, the identity of the whistleblower may be disclosed if the defendant can prove that it is relevant to the case (Brown, 1985; Feuer, 2001; Schreiber, 2001). „If we need informants, there should be very specific, enforceable guidelines on when you can use them and what you should disclose,“ said Somil Trivedi, senior attorney for the American Civil Liberties Union, which sued Orange County for using informants. Several states have tightened regulations on the use of whistleblowers, whose credibility has always been an issue because they are motivated to reduce their sentences. The county`s mistreatment of the jail`s informants likely marred the cases of nearly 150 other defendants and led to multiple new trials, according to civil rights activists.
While prosecutors agree that there must be skepticism about whistleblowers in prison, they say these witnesses provide crucial and truthful information that helps bring perpetrators to justice in many cases. Some fear that new whistleblower laws will take the credibility of witnesses out of the hands of jurors and leave it up to judges to decide before cases even go to court. In November, Illinois lawmakers overturned the then-governor`s veto. Bruce Rauner, a Republican, has approved one of the toughest tests in the country to allow whistleblowers to testify from prison. It requires judges to conduct preliminary investigations into the accuracy of prisoners` statements before admitting or prohibiting them. The courts have recognized that the government`s use of whistleblowers is lawful and often essential to the effectiveness of properly authorized investigations of law enforcement agencies. However, the use of whistleblowers to assist in the investigation of criminal activity may involve an element of deception, invasion of individual privacy, or cooperation with individuals whose reliability and motivation may be questioned. Although the FBI is legally allowed to use informants in its investigations, special care is taken to carefully evaluate and closely monitor their use so that the rights of those under investigation are not violated. The FBI can only use whistleblowers who comply with specific attorney general directives that control the use of informants. Several states, including California, Connecticut, Oklahoma and Utah, also require jurors to be informed that the testimony of prison informants be subject to further scrutiny.
However, like any law enforcement tool, the use of whistleblowers can be abused and abused. Whistleblowers can have their own agenda, they can mislead law enforcement or put innocent people in place. There are countless examples of whistleblower abuse by corrupt officials or those who simply take shortcuts and fail to carefully check the whistleblower or monitor their activities carefully. The unlawful convictions also prompted Texas lawmakers to tighten rules for prison informants in 2017. State law requires prosecutors to keep records of the use of informants in prison and any businesses they receive as a result of their testimony. It also requires prosecutors to disclose certain information about whistleblowers to defense lawyers. While confidential informants are often used by law enforcement agencies to produce more arrests, the lack of transparency surrounding the process has long been a concern for experts. Despite the challenges, Natapoff said she continues to hope these types of reforms will eventually be enshrined in law as the secret process behind confidential whistleblowers comes under closer scrutiny.
Federal Court decisions and the Constitution require prosecutors to disclose certain witness information, including exculpatory evidence favourable to the defence. But civil rights activists say new laws are needed to specify exactly what kind of information must be disclosed, including important details about whistleblowers. In Connecticut, Democratic Gov. Ned Lamont signed a sweeping bill in July that will create the first statewide system for tracking the use of prison informants, including any benefits offered in exchange for their testimony. The use of detained informants has also come under scrutiny in the wake of a scandal in Orange County, California, where federal authorities continue to investigate allegations that county officials unlawfully used detainees to try to obtain incriminating information from defendants awaiting trial — in violation of defendants` right to have their attorneys present. District authorities have repeatedly denied the existence of such an operation. The prosecution later claimed that the senior officer who requested the raid regularly used false information and attributed it to informants to obtain search warrants, and that he did so in this case. The low cost for whistleblowers and their ability to provide information more quickly and, in some cases, with less risk than secret investigations or electronic surveillance suggest that they will remain an important investigative tool in organised crime cases. Article 26 of the Organized Crime Convention identifies four different categories of information that could be gathered from whistleblowers: In most cases, confidential informants are suspects who have been arrested or convicted for their own crimes, but who have reached an agreement with police and prosecutors to reduce their sentence in exchange for information leading to a more valuable arrest. The new rules include a preliminary inquiry into hearings to determine whether detainees` testimony should be admitted and require prosecutors to disclose all transactions with whistleblowers, as well as their testimony in other cases.
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