The justices on the Massachusetts Supreme Judicial Court (SJC) recently wrote one of their best, and bravest, decisions in years, but the Herald and Globe both missed it. I almost did too, if it weren’t for a piece in Massachusetts Lawyers Weekly. So allow me to, belatedly, extol the SJC’s opinion in Commonwealth v. Murphy (text), which has finally ended, as a practical matter, this state’s long-running practice of using dubious jailhouse informant testimony in criminal cases.
As any criminal defense lawyer will tell you, jailhouse snitch testimony is always self-serving, often embellished, and rarely accurate. According to a 2005 report from Northwestern University’s Center on Wrongful Convictions, of the 111 men exonerated from death row since 1977 through DNA testing, a staggering 51 of their cases involved jailhouse snitch testimony. The Innocence Project estimates that fifteen percent of the cases that it has overturned using DNA testing hinged largely on false testimony from a jailhouse informant.
The SJC likely had these chilling figures in mind when it all-but-banned the practice in Commonwealth v. Murphy. But, perhaps in an effort to spare prosecutors embarrassment, the high court did not mention these disturbing statistics and instead effectively abolished snitch testimony on what some will see as “technical” grounds, concluding that for the authorities to allow an informant to snooker another prisoner into confessing is just a back-door way of interrogating the prisoner without his lawyer present, thereby violating the right-to-counsel “Miranda rule” that everyone knows from television. Of course, as practicing lawyers and probably the justices well-understood, more often than not the jailhouse snitch makes up the “confession” that his fellow prisoner supposedly confided to him while the two happened to be having a friendly chat during, say, lunch.
As a result of this barely noticed opinion from our state’s highest court, one more pernicious and corrupting practice has been eliminated from a criminal justice system much in need of repair. Let’s hear it for the Justices!