Witness Corroboration under the Texas Penal Code: Who Believes a Snitch?
Posted on by Michael Lowe.
People lie. That’s a sin, but it’s usually not a crime. However, when someone lies who is providing evidence in a criminal proceeding, they have become a “witness” under the law and lying becomes a big problem. It’s perjury. And witnesses who lie can destroy lives.
Evidence in a Criminal Case: Documents and Testimony
In every criminal case, the prosecution has the burden to prove their allegations against the accused “beyond a reasonable doubt” in order to get a conviction. As the United States Supreme Court (“SCOTUS”) explains in United States v. Haymond, 139 S. Ct. 2369, 2372 (2019):
This is required by both the Fifth and Sixth Amendments, where “a …judge’s sentencing authority derives from, and is limited by, the jury’s factual findings of criminal conduct. A jury must find beyond a reasonable doubt every fact “`which the law makes essential to [a] punishment'” that a judge might later seek to impose. Blakely v. Washington, 542 U.S. 296, 304, 124 S.Ct. 2531, 159 L.Ed.2d 403.
How does a jury find “every fact” in order to come back with a verdict of guilty (or not guilty)? They must rely on only two things: (1) physical evidence and (2) witness testimony. Those are provided by the prosecuting attorney and the defense lawyer.
Under Texas law, “physical evidence” means “…any tangible object, thing, or substance relating to a criminal action.” Tex. Code Crim. Proc. art. 38.35(a)(5). Things like forensic test results, maps, Ring camera footage, photographs, bank records, videos, social media uploads, and more can all be presented by the state to establish the various elements of each criminal charge brought against the defendant. Evidentiary rules create lots of hurdles before anything can merit consideration by the jury. Each and every piece of physical evidence has to be shown as (1) authentic and (2) admissible before the judge will allow its admission into the record.
- For more, see: Ring Cameras and Police Surveillance: Growing Police Power Privacy Concerns; and Encryption and Law Enforcement Investigations: Police Access to Encrypted Data.
Usually, this physical evidence won’t be enough.
For most criminal defense attorneys, both the prosecution’s case as well as the counter offered by the defense will involve evidence in the form of witness testimony.
No one believes that every single person can be sworn to tell the truth, take the witness stand, and give complete and accurate information about what they are contributing to the proceedings. To counter this, both the prosecution and the defense will be allowed to question (“examine”) all witnesses.
Direct examination is the procedure where the prosecution questions those witnesses called as part of the state’s case. During direct, physical evidence can be introduced as well. The defense can also have direct examination of its witnesses when putting on the defense’s case (if the defense decides there is even a need to do so).
Cross examination happens when the witness is questioned by the attorney who did not call them to the witness stand. When crossing any witness called by the district attorney, the defense will be questioning with the goal of exposing the witness as not being credible or believable.
Witness testimony is transcribed by the court reporter. Those transcripts become a part of the official public record of the trial alongside all the physical evidence that has been introduced and admitted by the judge. In the jury room, the jurors can look over the physical evidence and ask for the transcription of portions of any witness testimony to be read back to them for clarity or confirmation.
In the minds of the jurors in a criminal case, witness testimony can be very powerful – or carry little if any weight at all.
Texas Penal Code Statutes: Witness Corroboration
Recognizing the complexities of witness testimony in criminal cases, the Texas Legislature has passed several statutes that deal specifically with witness corroboration. They include:
- Texas Code of Criminal Procedure art. 38.075: CORROBORATION OF CERTAIN TESTIMONY REQUIRED. (“TCCP Article 38.075”)
(a) A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant’s interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed. In this subsection, “correctional facility” has the meaning assigned by Section 1.07, Penal Code.
(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows that the offense was committed.
(c) Evidence of a prior offense committed by a person who gives testimony described by Subsection (a) may be admitted for the purpose of impeachment if the person received a benefit described by Article 39.14(h-1)(2) with respect to the offense, regardless of whether the person was convicted of the offense.
- Texas Code of Criminal Procedure art. 38.141: TESTIMONY OF UNDERCOVER PEACE OFFICER OR SPECIAL INVESTIGATOR. (“TCCP Article 38.141”)
(a) A defendant may not be convicted of an offense under Chapter 481, Health and Safety Code, on the testimony of a person who is not a licensed peace officer or a special investigator but who is acting covertly on behalf of a law enforcement agency or under the color of law enforcement unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.
(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows the commission of the offense.
(c) In this article, “peace officer” means a person listed in Article 2.12, and “special investigator” means a person listed in Article 2.122.
- Texas Code of Criminal Procedure art. 38.18: Art. 38.18. PERJURY AND AGGRAVATED PERJURY. (“TCCP Article 38.18”).
(a) No person may be convicted of perjury or aggravated perjury if proof that his statement is false rests solely upon the testimony of one witness other than the defendant.
(b) Paragraph (a) of this article does not apply to prosecutions for perjury or aggravated perjury involving inconsistent statements.
- Texas Code of Criminal Procedure art. 38.27: EVIDENCE OF HANDWRITING. (“TCCP Article 38.27”)
It is competent to give evidence of handwriting by comparison, made by experts or by the jury. Proof by comparison only shall not be sufficient to establish the handwriting of a witness who denies his signature under oath.
- Texas Code of Criminal Procedure art. 38.07: TESTIMONY IN CORROBORATION OF VICTIM OF SEXUAL OFFENSE. (“TCCP Article 38.07”).
(a) A conviction under Chapter 21, Section 20A.02(a)(3), (4), (7), or (8), Section 22.011, or Section 22.021, Penal Code, is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is alleged to have occurred.
(b) The requirement that the victim inform another person of an alleged offense does not apply if at the time of the alleged offense the victim was a person:
(1) 17 years of age or younger;
(2) 65 years of age or older; or
(3) 18 years of age or older who by reason of age or physical or mental disease, defect, or injury was substantially unable to satisfy the person’s need for food, shelter, medical care, or protection from harm.
We will discuss the last one in this list in a future article. Of special interest for criminal defense lawyers, especially those in the North Texas area, is the snitch corroboration law that was put into place after the fake drug scandal in Dallas Country a few years back.
The Dallas Fake Drugs Scandal: Snitches Plant Pool Cue Chalk, Police Make Cocaine Arrests
Back in 2001, several members of the Dallas Police Department developed a scheme where they had known six police informants (“snitches”) buy up lots of billiards chalk (the white powder used to increase friction on a pool cue, making it easier to hit the ball).
The snitches would package the stuff so it looked like cocaine, and then plant the fakes on people who had no idea what was happening. Then the police officers would go out and arrest the marks. We now know that thirty-three arrests were made based upon this fake cocaine racket.
Of course, eventually everyone in the country knew about this illegal enterprise orchestrated by a bunch of Dallas narcotics cops. (Is this a surprise, given that snitches were involved?)
It became a national news story and a very big scandal for local law enforcement. Several of the officers were indicted; at least one served jail time; others were fired. The informants were arrested, too.
Charges ranged from officers lying about performing field tests; aggravated perjury; fabricating evidence; forgery; federal civil rights violations; and federal organized crime charges.
Finally, the City of Dallas was sued for civil damages by the people who had been illegally targeted and arrested for felony drug charges based on the pool chalk scam.
For more, read “Dallas Fake Drug Cases Settle For Millions, Jury Awards Damages,” written by Michael Rigby and published by the Prison Legal News on March 15, 2006; “Ex-informant sentenced to 20 years in fake-drug scandal,” published in the Times Union on September 18, 2005; and see De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
Texas Legislation Response to Dallas Fake Drugs Scandal
The Texas Legislature responded to the Dallas Fake Drugs Scandal. Witness corroboration is needed for informants who testify.
TCCP Article 38.141 was passed to deal specifically with drug informant witnesses. This law mandates there be corroboration of the drug snitch before they are allowed to provide testimony in a proceeding. TCCP Article 38.075 demands there be witness corroboration for jailhouse snitches.
For more, read “Texas requires corroboration for informant witnesses,” written by Alexandra Natapoff and published by Snitching on October 4, 2010.
Of note, the Texas Court of Criminal Appeals has held that TCCP Article 38.075 is designed to operate “similarly” to TCCP Article 38.14, the statute “enacted to address how to handle accomplice-witness testimony.” Phillips v. State, 463 S.W.3d 59, 67, 69 (Tex. Crim. App. 2015). From the opinion:
Just as Article 38.14 was enacted to address how to handle accomplice-witness testimony, Article 38.075 was enacted to similarly address the unreliability of jailhouse-witness testimony.
What is Witness Corroboration?
When someone becomes a witness in a criminal case, they take an oath to tell the truth that can result in perjury charges if they should lie in their testimony. Not all witnesses are the same, though. For some witnesses, the law finds the need to confirm their trustworthiness. This is accomplished by witness corroboration.
How is it done? Witness corroboration can be achieved through another witness or by physical evidence. A corroborating witness is someone who gives testimony that supports the earlier testimony. Corroborating evidence can be any type of physical evidence that confirms the credibility of the earlier testimony. Ring camera footage, for instance, might be offered by the prosecution to support what an informant has to say.
The credibility of the witness depends upon who is testifying. As explained in Diaz v. State, 632 S.W.3d 889, 893 (Tex. Crim. App. 2021), “…[a] citizen informant reporting as a victim of or witness to a crime `is presumed to speak with the voice of honesty and accuracy,” while a snitch can be presumed to be dishonest because of his “self-serving motive.”
This does not mean that informants rarely testify these days. Far from it. Together with compliance with the above statutes, Texas courts will allow confidential police informants (“CIs”) to give witness testimony in criminal matters if there is a “proven track record of providing reliable information.” Id. It can also come into the record as a statement against penal interest; if it is consistent with other information; it is a detailed, first-hand account; or it is paired with an accurate prediction of the subject’s future behavior. Id., citing State v. Duarte, 389 S.W.3d 349, 356-357 (Tex. Crim. App. 2012).
Let’s Not Forget “the Monsignors”
For criminal defense lawyers, having a prosecutor offer up an informant as part of the state’s case is always a red flag. It’s weak. It’s notorious for being prone to exaggeration or outright deception. There is a reason that informants are given nicknames like “rat,” “canary,” “stool pigeon,” and “weasel.”
Now, the defense attorney must add to the task list a need to investigate that snitch witness’s credibility. Why? Because from a defense perspective, there is always the concern that there might be a dance between the snitch and the state which is mutually beneficial and might destroy the defendant.
We have to do things like evaluate if the informant is a “monsignor” because of their mysterious ability to get confessions out of people and relay them to the prosecution.
Consider the true story of the infamous snitch John Hall who was nicknamed “Monsignor.” For over twenty years, he worked as a jailhouse snitch who gave testimony in homicide cases. He squealed on fellow inmates for things like past homicides or planned jailbreaks.
The Monsignor, in turn, orchestrated leniency on his own sentences. The prosecutors should have been suspicious: one of his convictions was being a successful con artist who pretended to be a doctor.
Instead, they kept using him. When his antics became too obvious, they still used the Monsignor. They just let him tell his tall tales to other inmates, who in turn gave witness testimony as if they had heard the “confessions” themselves. Eventually, this scheme also became public knowledge.
For more read: Sutterer, Jennifer. “Snitches Cause Stitches: The Need for Legislative Reform on Jail House Informant Testimony Laws.” Journal of Legislation 48.2 (2022): 317, 338.
Then there is the infamous Pennsylvania snitch, Sonny Oglesby, also known as “Monsignor.” The Pennsylvania Supreme Court heard an appeal from one of the Monsignor’s marks and ruled as follows, citing SCOTUS in Commonwealth v. Moose, 529 Pa. 218, 229-230, 602 A.2d 1265 (1992) (emphasis added):
Although the district attorney denied that he instructed Oglesby to gather information, it is clear from the testimony that Oglesby was acting as an agent of the Commonwealth when he was in jail. Oglesby had been in the county jail for three years waiting to be sentenced; the Commonwealth repeatedly delayed sentencing every time Oglesby produced a new confession. Although the district attorney may have not given Oglesby specific instructions, it is clear that Oglesby was well aware of what he had to do while in jail to get a good recommendation at his sentencing.
It is not significant that Oglesby was not planted for the purpose of gaining information from a targeted defendant. The fact that the Commonwealth intentionally left him there to harvest information from anyone charged with a crime and awaiting trial is the villainy. The vast majority of people in county jail are charged with crimes and awaiting trial and they have a right to counsel when interrogated about the crimes with which they are charged.
While the government may not have paid Oglesby with money, they were prepared to pay him as valuable a coin: a lenient recommendation despite the heinous charges filed against him. We are thus persuaded and conclude that Oglesby was an agent for the Commonwealth. He “elicited” a confession from Bradley Small inculpating Small’s brother and when that turned out not to be the person the Commonwealth charged, Oglesby went right back to the prison and “elicited” a confession from Moose (who denied making any such confession to Oglesby).
The Commonwealth apparently lost sight of the fact that “ours is an accusatorial and not an inquisitorial system” of justice, Rogers v. Richmond, 365 U.S. 534, 541, 81 S.Ct. 735, 739, 5 L.Ed.2d 760 (1961), and that “tactics for eliciting inculpatory statements must fall within the broad constitutional boundaries imposed by the Fourteenth Amendment’s guarantee of fundamental fairness.” Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985), quoted in Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2394, 2399-2400, 110 L.Ed.2d 243 (1990) (Brennan, J., concurring).
Snitches and Defense Need for Witness Corroboration
Despite statutory provisions and constitutional protections (e.g., the Sixth Amendment), witness testimony cannot be taken for its face value. This is particularly true when the witness has been acting as an informant for law enforcement. Not only is the testimony unreliable in proving up the charges against the accused, it can end up with innocent people going to jail as well as prison, or even executed, if the defense attorney cannot ferret out the wrongdoing.
Using snitches on the stand must be considered alongside the possibility of prosecutorial wrongdoing.
The only reason to have an informant testify is to try and prove up the prosecution’s case. Experienced criminal defense attorneys, as part of a zealous representation of their client, must be suspicious of these offers of evidence and the possibility of false evidence being used to convict.
It’s not paranoia: consider our earlier discussions in:
- Texas Court Finds Texas Prosecutor Karren Price Hid Evidence and Introduced False Evidence in Murder Case Where Innocent Man Spent 15 Years Behind Bars
- For Decades, Feds (DOJ, FBI) Knew Forensic Evidence Was Unreliable but Said Nothing to Defense: How Many Innocents Behind Bars, How Many Have Been Wrongfully Executed?
- Texas Judge Finds Probable Cause that Texas DA Illegally Withheld Evidence in Murder Trial of Michael Morton
- Texas Prosecutor on Trial for Prosecutorial Misconduct
- Prosecutorial Misconduct in Texas: Continuing Injustice
- Prosecutorial Misconduct Rules Issued by Texas Supreme Court: Where is Michael Morton’s Prosecutor, Ken Anderson, now?
- Prosecutorial Misconduct Still a Big, Big Problem: District Attorneys Do Bad Things
- District Attorneys Keep Doing Bad Things: More Texas Prosecutorial Misconduct Stories
- Prosecutorial Misconduct in Twin Peaks: Waco DA Dismisses and AG Refuses to Prosecute.
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