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Bownan on Self-Incrimination by Criminal Informants

By Lawrence Solum

Mary Bowman (Seattle University School of Law) has posted Truth or Consequences: Self-Incriminating Statements and Informant Veracity (New Mexico Law Review, Vol. 40, Forthcoming) on SSRN. Here is the abstract:

Courts treat self-incriminating statements by criminal informants as a significant factor favoring the reliability of the informant?s information when making probable cause determinations for the issuance of search warrants. Courts do so even though admissions of criminal activity usually undercut, rather than support, credibility. In using self-incriminating statements to support the informant?s reliability, courts tend to rely on a theory with significant theoretical flaws. Furthermore, recent United States Supreme Court jurisprudence in other contexts undercuts the reliability of using self-incriminating statements to support the veracity of other information. If courts adequately scrutinize the informant?s self-incriminating statements and the circumstances surrounding the making of those statements, however, these statements can be used to support the informant?s veracity in limited circumstances. This article therefore proposes an analytical framework courts can use to assess more accurately when an informant?s self-incriminating statements should support the informant?s veracity. The test proposed here is sufficiently flexible to allow the courts and police to consider the facts and circumstances of each case, but it will provide some guidance to courts and officers that will help protect the public from some of the abuses that can come with over-reliance on criminal informants.

Full post as published by Legal Theory Blog on June 25, 2010 (boomark / email).