Provides for evidentiary treatment of informant testimony; requires that an informant's testimony be corroborated, jury instructions given regarding reliability and disclosure by the prosecutor prior to acceptance of a plea bargain by the defendant.
BILL NUMBER: S7873
TITLE OF BILL : An act to amend the criminal procedure law, in relation to informant testimony
PURPOSE OR GENERAL IDEA OF BILL : This bill would amend the Criminal Procedure Law to provide for the evidentiary treatment of informant testimony.
SUMMARY OF SPECIFIC PROVISIONS : Section 1 of the bill adds a new §60.77 to the Criminal Procedure Law to provide for the evidentiary treatment of informant testimony.
JUSTIFICATION : This is one of six bills that are based on the recommendations of the Task Force on Wrongful Convictions of the New York State Bar Association. That Task Force was created in 2008, and examined 53 cases where a defendant was wrongfully convicted of a crime and, later exonerated, Through this study, the Task Force identified what it found to be the causes of these mistakes. In report was approved by the Bar Association in 2009, and this bill is intended to address one of the causes that were so identified.
A large percentage of cases in which wrongful convictions have been documented involve testimony from informants who are themselves in-custody or facing criminal prosecution or otherwise receiving incentives such as financial payments for their testimony. Most studies have found that 50% of wrongful murder convictions involve perjury by someone such as a "jailhouse snitch" or a witness who stood to gain from giving false testimony. This testimony is from a participant in a crime who is willing to implicate others in return for a favorable disposition of the charges relating to his or her participation, or an individual who was not a participant in the crime in question but who asserts that he or she has been told about the crime by one of the participants and who is willing to testify about those conversation in exchange for some benefit, usually a favorable disposition with respect to unrelated charges pending against the informant.
This bill would require that an informant's testimony be corroborated, jury instructions should be given regarding reliability, and disclosure by the prosecutor prior to the acceptance of a plea bargain by the defendant.
PRIOR LEGISLATIVE HISTORY : New bill.
FISCAL IMPLICATIONS : To be determined.
EFFECTIVE DATE : This act shall take effect on the ninetieth day after it shall have become a law and shall apply to any criminal proceeding commenced on or after such date.
STATE OF NEW YORK ________________________________________________________________________ 7873 IN SENATE May 19, 2010 ___________Introduced by Sen. DUANE -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to informant testimony THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The criminal procedure law is amended by adding a new section 60.77 to read as follows: S 60.77 RULES OF EVIDENCE: TESTIMONY OF AN INFORMANT WHO IS NOT AN ACCOMPLICE. 1. DEFINITION. AS USED IN THIS SECTION, AN "INFORMANT" IS A PERSON WHO IS NOT AN ACCOMPLICE AND WHO AGREES TO PROVIDE TESTIMONY OR EVIDENCE ON AN UNDERSTANDING THAT HE OR SHE WILL RECEIVE A FAVORABLE DISPOSITION OR RESOLUTION OF PENDING OR POSSIBLE CRIMINAL CHARGES, FINANCIAL BENEFIT NOT ASSOCIATED WITH USUAL WITNESS APPEARANCE, OR OTHER SUBSTANTIAL BENE- FIT FOR HIMSELF OR HERSELF OR ANOTHER PERSON. 2. THE TESTIMONY OF AN INFORMANT AGAINST THE DEFENDANT MAY BE ADMITTED INTO EVIDENCE ONLY IF THE PROSECUTION PRESENTS EVIDENCE INDEPENDENT OF THE INFORMANT'S TESTIMONY THAT TENDS TO CONNECT THE DEFENDANT TO THE COMMISSION OF THE OFFENSE. 3. (A) UNLESS EARLIER DISCLOSURE IS OTHERWISE REQUIRED BY LAW, AT A REASONABLE TIME PRIOR TO TRIAL OR ENTRY OF A GUILTY PLEA, THE PROSE- CUTION SHALL DISCLOSE TO THE COURT AND THE DEFENSE THE EVIDENCE IT CLAIMS TO BE CORROBORATIVE OF THE INFORMANT'S INFORMATION TENDING TO CONNECT THE DEFENDANT WITH THE OFFENSE. AT A REASONABLE TIME PRIOR TO TRIAL THE COURT SHALL DETERMINE WHETHER, WITHOUT THE INFORMANT'S TESTI- MONY, THE PROSECUTOR'S PROPOSED EVIDENCE TENDS TO CONNECT THE DEFENDANT TO THE OFFENSE. IF THE COURT FINDS THAT THE PROPOSED INDEPENDENT EVIDENCE TENDS TO CONNECT THE DEFENDANT TO THE OFFENSE, THE INFORMANT SHALL BE PERMITTED TO GIVE TESTIMONY AT A TRIAL. IF THE PROSECUTION FAILS TO MAKE THE REQUIRED SHOWING, THE INFORMANT WILL NOT BE PERMITTED TO TESTIFY CONCERNING THE DEFENDANT'S ROLE IN THE OFFENSE. (B) AT A REASONABLE TIME PRIOR TO TRIAL OR ENTRY OF A GUILTY PLEA, THE PROSECUTOR SHALL INFORM THE DEFENSE OF ANY PROMISE, BENEFIT, OR FAVORA-EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD17111-01-0 S. 7873 2
BLE DISPOSITION GIVEN TO THE INFORMANT OR SOMEONE ELSE AT THE INFORMANT'S REQUEST AND DELIVER TO THE DEFENSE ANY DOCUMENT, ELECTRONIC RECORD, NOTES OR OTHER RECORD OF THE PROMISE; THE CIRCUMSTANCES IN WHICH THE INFORMANT REVEALED THE INFORMATION; WHETHER THE INFORMANT AT ANY TIME RETRACTED THE INFORMATION AND THE CIRCUMSTANCES OF SUCH RETRACTION; THE INFORMANT'S RECORD OF CRIMINAL CONVICTIONS AND PRIOR CRIMINAL CONDUCT; OTHER MATTERS IN WHICH THE INFORMANT HAS GIVEN AID TO OR TESTI- FIED FOR THE PROSECUTION; AND SUCH OTHER INFORMATION AS THE DEFENSE REQUESTS AND THE COURT DEEMS APPROPRIATE UNDER THE CIRCUMSTANCES. (C) UPON MOTION OF THE PROSECUTOR AND ON A SHOWING THAT DISCLOSURE OF THE INFORMANT'S IDENTITY WOULD ENDANGER THE INFORMANT, THAT THE INFORMANT'S SERVICES TO THE STATE WOULD BE UNDERMINED, OR FOR OTHER REASON FOUND COMPELLING BY THE COURT, THE IDENTITY OF THE INFORMANT MAY BE REDACTED AND REMAIN UNDISCLOSED TO THE DEFENSE UNTIL SUCH TIME AS THE COURT DEEMS APPROPRIATE OR REQUIRED BY LAW. 4. BEFORE THE DEFENDANT ENTERS A GUILTY PLEA THE COURT SHALL ADVISE THE DEFENDANT THAT AT A TRIAL THE INFORMANT COULD BE CROSS-EXAMINED CONCERNING CREDIBILITY AND RELIABILITY AND THAT BY PLEADING GUILTY TO RESOLVE THE CASE, HE OR SHE WAIVES THE RIGHT TO CROSS-EXAMINE THE INFOR- MANT. 5. (A) IF THE INFORMANT'S TESTIMONY OR EVIDENCE IS ADMITTED AT TRIAL, THE COURT SHALL INSTRUCT THE JURY THAT IT SHOULD REVIEW THE RELIABILITY AND CREDIBILITY OF THE INFORMANT'S TESTIMONY WITH CAUTION, SCRUTINY, AND CARE, THAT THE JURY IS TO CONSIDER WHETHER THE TESTIMONY WAS INFLUENCED BY ANY PROMISE OR BENEFIT TO THE INFORMANT OR SOMEONE AT HIS OR HER REQUEST, AND SUCH OTHER FACTORS AS THE COURT CONSIDERS APPROPRIATE IN THE CIRCUMSTANCES. (B) IF THE INFORMANT'S TESTIMONY OR EVIDENCE IS ADMITTED AT TRIAL, THE COURT SHALL INSTRUCT THE JURY THAT UNLESS IT FINDS THAT CREDIBLE EVIDENCE INDEPENDENT OF THAT OF THE INFORMANT'S TENDS TO CONNECT THE DEFENDANT TO THE OFFENSE, IT CANNOT CONSIDER THE TESTIMONY OF THE INFOR- MANT IN MAKING ITS DECISION. S 2. This act shall take effect on the ninetieth day after it shall have become a law and shall apply to any criminal proceeding commenced on or after such date.