The Special Threat of Informants to the Innocent Who Are Not Innocents: Producing “First Drafts,” Recording Incentives, and Taking a Fresh Look at the Evidence

Authors

Robert P. Mosteller, Duke Law SchoolFollow

Document Type

Article

Publication Date

2009

Keywords

testimony, informants, innocence, convictions, Lee Wayne Hunt, Duke lacrosse, incentivized witnessing

Abstract

Fabricated testimony by informants often plays an important role in convictions of the innocent. In this article, I examine the particularly problematic situation of defendants who are innocent of the particular crime charged but are not strangers to crime. As to such defendants, potential informants abound among crime associates, and they have a ready story line that authorities are preconditioned to accept. Independent proof, which could be an antidote, will predictably be lacking. Indeed, that the informant has exclusive, critical knowledge often leads the prosecution to offer particularly tempting deals.

I focus on the case of Lee Wayne Hunt, a likely an innocent man condemned to spend his life in a North Carolina prison. Hunt, who was the head of a local marijuana distribution ring, was convicted of apparently drug-related murders exclusively by the testimony of informants. The strong reason to believe he is innocent comes from confession of sole guilt by an alleged co-participant made to his lawyer before his own trial for the murders, a confidential communication revealed only after the client's suicide. Remarkably, relief has been refused.

To reduce the dangers of fabricated informant testimony, I propose requiring the recording of “first drafts” of informant stories and documenting the full extent of promises made or assumed. Procedures should also be developed for independent prosecutorial review before trial in all cases that depend critically on informant testimony and for independent review of such cases after conviction when facially credible claims are made that would create a reasonable likelihood of innocence if substantiated.

Citation

Robert P. Mosteller, The Special Threat of Informants to the Innocent Who Are Not Innocents: Producing “First Drafts,” Recording Incentives, and Taking a Fresh Look at the Evidence, 6 Ohio State Journal of Criminal Law 519-579 (2009)