February 8, 2019

The Division of Criminal Justice opposes S.B. No. 1098, An Act Concerning the Testimony of Jailhouse Witnesses, and respectfully recommends the Committee take NO ACTION on this legislation. 

Section 2 of the bill usurps the function of a jury by effectively reassigning its role as the ultimate arbiter of witness credibility, based on everything that is before it, to the trial court, based on arbitrarily limited information. It has long been established that a trial court’s evidentiary gatekeeping role is limited to ensuring only that “a witness’ testimony meets the minimum standard of credibility necessary to permit a reasonable person to put any credence in that testimony.” (Emphasis in opinion.)  State v. Ritrovato, 280 Conn. 36, 51-52 (2006).

The minimum standard of credibility relates to the competency of the witness, not the ultimate reliability of his or her testimony. That minimum standard is also well-established, and appears in the Connecticut Code of Evidence at sections 6-1 (unless otherwise provided, every person presumed competent to testify) and 6-3 (witness incompetent if court finds he or she incapable of understanding duty to tell truth, receiving correct sensory impressions, remembering such impressions, and expressing such impressions in manner that may be understood, or if he or she refuses to testify truthfully). So long as a jailhouse informant is competent and, therefore, meets the minimum standard of credibility, the ultimate determination regarding the reliability of his testimony is the exclusive province of a jury, the body that forms the cornerstone of our criminal justice system.

The bill embodies a presumption that a jury of the defendant’s peers cannot be trusted to carefully consider and assess all of the testimony that is presented to it, including that which is given by a witness whose testimonial motivations may be called into question. Such an unfortunate and unwarranted presumption is also an unnecessary one in the case of the testimony of a jailhouse informant.

In State v. Patterson, 276 Conn. 452 (2005), our Supreme Court imposed a rule requiring trial judges to instruct the jury that the testimony of a jailhouse informant must “be reviewed with particular scrutiny and weighed ... with greater care than the testimony of an ordinary witness.” In addition, pursuant to Patterson, for the testimony of a jailhouse informant, the trial judge instructs the jury to consider the very factors that the bill seeks to remove from the jury and delegate to the trial judge: the extent to which the informant's testimony is confirmed by other evidence; the specificity of the testimony; the extent to which the testimony contains details known only by the perpetrator; the extent to which the details of the testimony could be obtained from a source other than the defendant; the informant's criminal record; any benefits received in exchange for the testimony; whether the informant previously has provided reliable or unreliable information; and the circumstances under which the informant initially provided the information to the police or the prosecutor, including whether the informant was responding to leading questions. Practically speaking, section 2 of the bill would likely result in effective “mini-trials” being held during the pretrial phase of a case in order to properly and fully inform the trial court’s application of the five factors it must use to determine the “reliability” the testimony. 

In conclusion, the Division respectfully recommends the Committee take NO ACTION on S.B. No. 1098. We thank the Committee for affording this opportunity to provide input on this matter and would be happy to provide any additional information the Committee might require or to answer any questions that you might have.