The Law Office of Robert D. Anderson, PLLCFormer Chief Prosecutor Of Loudoun County
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Lawmakers strengthen Brady rule for jailhouse informants

Jailhouse informants are valuable sources of information for prosecutors in Virginia and around the country, but their testimony is often only given in return for a reduced sentence or other concessions. Information that could bring the credibility of a prosecution witness into question must be turned over to criminal defendants and their attorneys under what is known as the Brady rule, but this does not always happen when prisoners agree to testify.

This is a problem that has led lawmakers in several states to pass legislation that strengthens the rule laid down by the U.S. Supreme Court in the landmark 1963 case Brady v. Maryland. In Illinois, jailhouse informants are only permitted to give evidence in court after their credibility has been assessed by a judge. In Connecticut, a statewide database of jailhouse testimony and the concessions that were granted in return for it has been established. Exoneration data from the Innocence Project suggests that testimony from jailhouse informants plays a role in about one in five wrongful convictions.

The Connecticut law was passed after DNA evidence was used to secure the release from prison of two men who spent decades behind bars for crimes they did not commit. Jailhouse informants in both trials said under oath that they had not been offered any concessions to encourage them to give evidence. It was later learned that the sentence of one of the jailhouse informants was shortened and several pending charges against the other were dropped.

Criminal defense attorneys may ask an appeals court to set a guilty verdict aside and order a new trial when material that should have been handed over under the Brady rule has been withheld. Attorneys could seek to avoid this situation during plea negotiations by reminding prosecutors that they could face sanctions for violating the rule.

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