Law marks most comprehensive protections in the nation against unreliable jailhouse informants

Contact: Julia Lucivero, jlucivero@innocenceproject.org, 212-364-5173

(June 15, 2017 – Austin, Texas) Governor Greg Abbott has signed critical legislation into law (House Bill 34) that implements many of the recommendations of the Timothy Cole Exoneration Review Commission- a commission created by the legislature in 2015 to review causes of wrongful convictions and propose suggestions on how the state of Texas can prevent future wrongful convictions. These changes will enhance transparency and accuracy in the criminal justice system by regulating the use of jailhouse informants, requiring police to record all custodial interrogations for suspects in serious felony cases, strengthening the use of eyewitness identification best practices and tasking the Texas Forensic Science Commission to study drug field test kits and crime scene investigations. The bill was sponsored by Rep. John Smithee (R-Amarillo) who chaired the Commission and Senator Charles Perry (R-Lubbock), who represents Lubbock County where Timothy Cole was wrongfully convicted of rape in 1986. The Innocence Project and the Innocence Project of Texas worked together in support of this bill throughout the legislative process.

Texas now has the most comprehensive statute in the nation to regulate the use of jailhouse informants, which played a role in nine wrongful convictions in the state and is a leading contributor to wrongful convictions nationally. Jailhouse informants are detained or incarcerated individuals who provide testimony or information—usually on how a defendant confessed to a crime—in exchange for benefits. The promise of benefits such as money, leniency and special privileges creates a strong incentive to lie, and the secretive nature of the jailhouse informant system makes cross-examination and other legal safeguards against unreliable testimony ineffective.

House Bill 34 will improve transparency and accountability in the jailhouse informant system by requiring county and district attorney offices to track information, including benefits provided to jailhouse informants, in exchange for testimony, previous cases in which they provided testimony and benefits provides in those cases, and their complete criminal history. The information must be disclosed to defense attorneys, which will allow them to raise issues of credibility in court so that judges and juries can more accurately assess jailhouse informant testimony. In addition, the law will ensure that prosecutors have accurate information on jailhouse informants so they can better assess whether to use them as witnesses.

Alexandra Natapoff, Loyola Law School professor and a leading legal scholar on informants in the criminal justice system stated, “This legislation is an important step in pulling back the curtain of secrecy and unreliability that has long surrounded the use of criminal informants. It will help reduce wrongful convictions, and it will strengthen the integrity of the Texas criminal process. Other states should take careful note.”

Cory Session, Tim Cole’s brother, and Board member of the Innocence Project of Texas, based in Fort Worth, Texas home of Tim Cole’s family, enthusiastically supported the bill, “Our entire family is pleased that with the passage and signing of this historic legislation, the State of Texas continues to lead the nation on criminal justice reform in seeking EQUAL JUSTICE UNDER LAW for all”

Michael Morton, who was wrongfully convicted of his wife’s murder in Austin, Texas and spent nearly 25 years in prison for a crime he did not commit added, “Thank you, Governor Abbott, for signing HB34 into law. Now, certain serious felony interrogations must be recorded. This protects our citizens, and it protects law enforcement. Requiring the recording of interrogations will remove the burdensome, unfair, and understandable temptation law enforcement may have to bend a rule or cut a corner to get people they believe are guilty convicted. . It will also provide solid evidence to prove all of the times law enforcement has followed the rules during custodial interrogations.”

Texas now has the most comprehensive law in the nation when it comes to regulating unreliable jailhouse informant testimony, and has also enacted important safeguards concerning eyewitness misidentification, recording interrogations and more. This new law stemming from the Commission’s recommendations includes the following requirements:

Jailhouse Informants

Tracking use of and benefits provided to jailhouse informants: An attorney for the state shall track: (1) the use of testimony of an in-custody informant, regardless of whether the testimony is presented at trial and (2) any benefits offered or provided to a jailhouse informant in exchange for testimony.

Admissibility of prior offenses committed by a jailhouse informant: Evidence of prior offenses committed by jailhouse informant who received a benefit may be admissible for purposes of impeachment, regardless of whether the person was convicted of the offense. Previously only crimes that resulted in convictions were admissible, meaning that previous charges dismissed against a jailhouse informant in exchange for testimony were inadmissible.

Enhanced disclosure of impeaching information: If the state plans to use jailhouse informant testimony, it shall disclose to the defendant any information that is relevant to the person’s credibility including: (1) the person’s complete criminal history, including any charges that were dismissed or reduced as part of a plea bargain). (2) any grant, promise or offer of immunity from prosecution, reduction of sentence, leniency or special treatment given by the state in exchange for testimony and (3) information concerning other criminal cases in which the person has testified, or offered testimony against a defendant with whom the person was imprisoned or confined.

Recording Interrogations

Electronic recording of custodial interrogations of suspects must be recorded in their entirety for serious felonies, unless good cause is shown. Electronic recording means audiovisual or audio-only if audiovisual is unavailable.

Crime categories range from murder, capital murder, kidnapping, aggravated kidnapping, trafficking of persons, continuous sexual abuse of young child/children, indecency with a child, improper relationship between educator and student, sexual assault, aggravated sexual assault, sexual performance by a child.

Eyewitness Identification

A model policy adopted by a law enforcement agency must include procedures for selecting photograph and live lineup fillers to ensure consistency in appearance with the suspect, instructions given to the witness prior to the procedure must include a statement that the alleged perpetrator may or may not be present; and a confidence statement must be taken from the witness after the procedure.

The Texas Commission on Law Enforcement shall establish a comprehensive education and training program on eyewitness identification including material regarding variables that affect a witness’s vision and memory, practices for minimizing contamination and effective eyewitness identification protocols. Each law enforcement agency shall require their peace officer who performs eyewitness identification procedures to complete the program.

Drug Field Test & Crime Scene Investigation Study

The Texas Forensic Science Commission shall conduct a study on the use of drug field test kits by law enforcement agencies and develop legislative recommendations to be submitted to the governor, lieutenant governor and legislature. Additionally, they shall conduct a study on crime scene investigations and shall evaluate the standard procedures used in processing a crime scene and evaluate the quality of crime scene investigations.

The Commission was composed of a broad range of criminal justice stakeholders including lawmakers, judges, prosecutors, defense attorneys and law enforcement officials.

Texas has now joined an additional 23 states and D.C. in requiring recording of certain interrogations including: Alaska, Arkansas, California, Colorado, Connecticut, Illinois, Indiana, Kansas, Maine, Maryland, Michigan, Minnesota, Missouri, Montana, Nebraska, New Jersey, New York, New Mexico, North Carolina, Oregon, Utah, Vermont and Wisconsin.

The Innocence Project is a non-profit legal organization that is committed to exonerating wrongly convicted people through the use of DNA testing and to reforming the criminal justice system to prevent future injustice. It is affiliated with the Cardozo School of Law in New York, NY.

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