Jailhouse Informants

When one is housed inside an eight-by-ten foot cell, human nature can trump rationality. A trusting or insecure inmate might recount to his cellmate details of his crimes, seeking advice, assistance, consolation, or confirmation of his masculinity. But the cellmate might encourage disclosures for a different, more selfish reason—to collect information that the government might find helpful. In short, he may be an informant. There have also been several well-publicized cases in which jailhouse informants fabricated confessions, sometimes against innocent defendants.

The admissibility of the informant’s testimony at the inmate’s criminal trial is governed by several provisions of the federal Bill of Rights, subject to modification by more liberal state constitutional provisions and both federal and state statutory law in some jurisdictions. The Sixth Amendment right to counsel mandates exclusion of the informant’s testimony if, at the time he questioned the inmate, (1) the inmate had already been charged with the questioned crime, even if no particular lawyer had been appointed to represent him; (2) the cellmate had prearranged his status as an informant; and (3) the cellmate actively prompted the inmate to speak about his crimes (passive listening to spontaneous utterances will not suffice). The Fifth Amendment’s due process clause, which prohibits the use of evidence obtained by outrageous police tactics, will be implicated only if the cellmate threatened the inmate with violence to induce speech. The Fifth Amendment’s self-incrimination clause does not apply, because questioning by an undercover agent (such as the cellmate) does not constitute a ‘‘coercive police environment’’ of the kind contemplated by the Supreme Court in Miranda. Finally, the Fourth Amendment offers no protection to the loquacious inmate, because the U.S. Supreme Court has consistently held that each of us must assume the risk that our consensual conversation partners are (or will become) traitors. For this reason, questioning by an undercover agent does not constitute a ‘‘search,’’ because it violates no reasonable expectation of privacy.

KAY L. LEVINE

References and Further Reading

• Tomkovicz, James J., An Adversary System Defense of the Right to Counsel against Informants: Truth, Fair Play, and the Massiah Doctrine, U.C. Davis Law Review 22 (1988): 1:1.
• Trott, Stephen S., Words of Warning for Prosecutors Using Criminals as Witnesses, Hastings Law Journal 47 (1996): 1381.

Cases and Statutes Cited

• Arizona v. Fulminante, 499 U.S. 279 (1991)
• Hoffa v. United States, 385 U.S. 293 (1966)
• Illinois v. Perkins, 496 U.S. 292 (1990)
• Kuhlmann v. Wilson, 477 U.S. 436 (1986)
• Miranda v. Arizona, 384 U.S. 436 (1966)
• United States v. Henry, 447 U.S. 264 (1980)
• United States v. White, 401 U.S. 745 (1971)

See also Arizona v. Fulminante, 499 U.S. 279 (1991); Bill of Rights: Structure; Coerced Confessions/Police Interrogation; Hoffa v. United States, 385 U.S. 293 (1966); Illinois v. Perkins, 496 U.S. 292 (1990); Miranda v. Arizona, 384 U.S. 436 (1966); Miranda Warning; Right to Counsel (VI); Rights of the Accused; Search (General Definition) Self-Incrimination: Miranda and Evolution