CALIFORNIA COMMISSION
ON THE FAIR ADMINISTRATION OF JUSTICE
REPORT AND RECOMMENDATIONS
REGARDING INFORMANT TESTIMONY.

The California Commission on the Fair Administration of Justice was
established by California State Senate Resolution No. 44 “to study and
review the administration of criminal justice in California, determine the
extent to which that process has failed in the past,” examine safeguards and
improvements, and recommend proposals to further ensure that the
administration of criminal justice in California is just, fair and accurate.
This Report will address the use of testimony from informants who
are themselves in custody or facing criminal prosecution. The motivation for
such testimony is frequently the expectation of some reward in the form of
reduction of charges, eligibility for bail, leniency in sentencing, or better
conditions of confinement. In a report by the Northwestern University
School of Law Center on Wrongful Convictions, the use of such informants
was identified among the three most prevalent factors in the wrongful
convictions of death row inmates. After a review of the cases of 111 persons
released from the nation’s death rows after they were exonerated, from 1973
through 2004, the Center found use of false testimony from informants in
45.9% of the cases. That made false informant testimony the leading cause
of wrongful convictions in U.S. capital cases – followed by erroneous
eyewitness identifications (25.2% of the cases), and false confessions
(14.4% of the cases). Northwestern University School of Law Center on
Wrongful Convictions, The Snitch System, p. 3 (2005).
While none of the 111 cases in the Center on Wrongful Convictions
report took place in California, the frequent use of informant testimony in
capital cases appears in California capital cases as well. Michael Laurence,
the Director of the California Habeas Corpus Resource Center, explained to
the Commission the reasons for the high prevalence of the use of arrested or
charged informants in capital cases. In his opinion, while they are rarely
needed to supply evidence of the defendant’s guilt of the underlying crime,
they often provide crucial testimony to prove the alleged special
circumstances which make the defendant eligible for the death penalty, or to
provide evidence of aggravation to persuade the jury to select death as the
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appropriate penalty. State Public Defender Michael Hersek reported to the
Commission that of the 117 death penalty appeals currently pending in his
office, seventeen featured testimony by in-custody informants, and another
six included testimony by informants who were in constructive custody.
Thus, confidence in the reliability of the testimony of arrested or charged
informant witnesses is a matter of continuing concern to ensure that the
administration of justice in California is just, fair and accurate.
The Commission conducted a public hearing in Redwood City,
California on September 20, 2006. Among the witnesses who testified at the
public hearing was Dennis Fritz, a former junior high school teacher from
Ada, Oklahoma. Mr. Fritz told the Commission that he and a codefendant
named Ron Williamson were convicted of the rape and murder of Debra Sue
Carter six years after the murder took place. The principal testimony against
them came from in-custody jail informants. Based on this testimony, with
little corroboration, Williamson was sentenced to death, and Fritz was given
a life sentence. Five days before his scheduled execution, Williamson won a
new trial. In preparation for the retrial, DNA testing was finally done. It
resulted in a match to one of the informants, and exonerated both
Williamson and Fritz. They were released after twelve years in prison. The
informant was subsequently convicted of the murder, and is now serving a
life sentence. Further information about this case can be found at
Williamson v. State, 812 P.2d 384 (Okla. Ct. Crim. App. 1991); Williamson
v. State, 852 P.2d 167 (Okla. Ct. Crim. App. 1993); Williamson v. Reynolds,
904 F.Supp. 1529 (E.D. Okla. 1995); Williamson v. Ward, 110 F.3d 1508
(10th Cir. 1997); Fritz v. State, 811 P.2d 1353 (Okla. Ct. Crim. App. 1991);
Gore v. State, 119 P.3d 1268 (Okla. Ct. Crim. App., 2005). See Grisham,
The Innocent Man (2006). Compare Letter of District Attorney William N.
Peterson to Commissioner Greg Totten [Available at www.ccfaj.org/rr-usefed.html ].
The Los Angeles County Experience.
In 1989, the exploits of Leslie Vernon White, a Los Angeles jail
inmate who demonstrated on national television how easy it was for
prisoners to gather information about the pending cases of other prisoners
and fabricate testimony that might gain them greater lenience in their own
cases, led the Los Angeles County Grand Jury to convene a comprehensive
investigation of the use of in-custody informants. The grand jury heard the
testimony of 120 witnesses, including six self-professed jail house
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informants. The report made recommendations for both the L.A. County
District Attorney and the L.A. County Sheriff’s Department with respect to
the handling of informants in jail and their use as witnesses in criminal
cases. See Report of the 1989-90 Los Angeles County Grand Jury:
Investigation of the Involvement of Jail House Informants in the Criminal
Justice System in Los Angeles County (1990). In response to this report, the
Los Angeles County District Attorney’s office adopted policy guidelines to
strictly control the use of jailhouse informants as witnesses. The policy
requires “strong corroborative evidence,” consisting of more than the fact
that the informant appears to know details of the crime thought to be known
only to law enforcement. A deputy wishing to use a jailhouse informant as a
prosecution witness must obtain the prior approval of a Jailhouse Informant
Committee headed by the Chief Assistant District Attorney. The office
maintains a Central Index of jailhouse informants who have offered to be, or
who have been used as witnesses. All records of jailhouse informants are
preserved, including notes, memoranda, computer printouts, records of
promises made, payments made, or rewards given, as well as records of the
last known location of the informant and records relating to cell
assignments. See Los Angeles County District Attorney’s Office, Legal
Policies Manual, Chapter 19, Jailhouse Informants, pp. 187-190 (April,
2005) [Available at www.ccfaj.org/rr-use-expert.html].
John Spillane, who currently serves as Chief Assistant District
Attorney in Los Angeles County, and heads the Jailhouse Informant
Committee, informed the Commission that the Committee rarely approves
the use of in-custody informants as witnesses. None has been approved
during the past twenty months, and only twelve in the past four years.
Throughout the 1990’s, the annual number of approvals averaged less than
six. Mr. Spillane informed the Commission that the office also requires that
interviews of in-custody informants by attorneys or investigators from the
District Attorney’s office must be tape recorded.
The Los Angeles District Attorney’s Office also offers training
sessions to its deputies to acquaint them with the risks and perils of using
informants as witnesses. In recent years, the training has been conduced by
Judge Stephen S. Trott of the U.S. Court of Appeals for the Ninth Circuit.
See Trott, Words of Warning for Prosecutors Using Criminals as Witnesses,
47 Hastings Law Journal 1381 (1996). The Commission recommends that
all prosecutors, defense lawyers, judges and police investigators in

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California receive training with respect to the perils of using arrested or
charged informants as witnesses.
The Commission undertook to ascertain whether the best practices
exemplified by the Los Angeles County District Attorney were being
implemented by other District Attorneys throughout the State of California.
A letter was sent to each of the fifty-eight County District Attorneys in the
State, inquiring whether they had office policies governing the use of incustody informants, and requesting a copy of that policy if it was in writing.
The letter also inquired as to how many cases included testimony of incustody informants during the past five years. We received nine responses.
Four of the five largest counties had written policies similar to the Los
Angeles County policy, requiring supervisory approval before the testimony
of an in-custody informant could be utilized. 1 None of the four smallest
counties had written policies, but three indicated that supervisory approval is
required. 2 The Santa Clara County and Orange County District Attorneys
were the only offices whose policy requires the maintenance of a central file
of all informant information. The survey suggests that the use of the
testimony of in-custody informants is rarely approved by any of the
responding offices.
The Commission recommends that the following best practices be
implemented whenever feasible. The Commission recommends that each
District Attorney’s office in the State of California adopt a written policy
which requires:
(1) The decision to use the testimony of an in-custody informant be
reviewed and approved by supervisory personnel other than the
deputy assigned to the trial of the case;
(2) The maintenance of a central file preserving all records relating to
contacts with in-custody informants, whether they are used as
witnesses or not;
(3) The recording of all interviews of in-custody informants conducted
by District Attorney personnel;

1

Orange, San Bernardino, Santa Clara and Ventura Counties have written policies; Sacramento does not..
Monterey, Placer and Solano Counties all require supervisory approval. The District Attorney for Yuba
County declined to disclose his policy.
2

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(4) The corroboration of any testimony of an in-custody informant by
evidence which independently tends to connect the defendant with
the crime, special circumstance or circumstance in aggravation to
which the informant testifies.
The 1989 Los Angeles grand jury inquiry also led the California State
Legislature to enact Section 1127a of the California Penal Code, which
currently requires that, upon the request of a party, the judge instruct the jury
in any case in which an in-custody informant testifies that the testimony
should be viewed with caution and close scrutiny, and the jury should
consider the extent to which it may have been influenced by the receipt of,
or expectation of, any benefits from the party calling that witness. This
instruction is now contained in CALCRIM No. 336, the recommended jury
instructions approved by the Judicial Council of California. Penal Code
Section 1127a also requires the prosecutor to file a written statement with
the court, contemporaneous with the calling of an in-custody informant as a
witness in any criminal trial, setting out any and all consideration promised
to, or received by the in-custody informant. Monetary payments to incustody informants for testimony by law enforcement or correctional
officials are limited to $50 by California Penal Code Section 4001.1.
Corroboration Requirements.
At present, California law does not directly require the corroboration
of the testimony of an in-custody informant. The Commission was informed
by Professor Ellen Yaroshefsky of the Benjamin N. Cardozo School of Law
that seventeen states now require the corroboration of in-custody informants.
The only corroboration requirement currently embodied in California law is
the requirement of corroboration of the testimony of accomplices, contained
in Penal Code Section 1111:
1111. A conviction cannot be had upon the testimony of an
accomplice unless it be corroborated by such other evidence as shall
tend to connect the defendant with the commission of the offense;
and the corroboration is not sufficient if it merely shows the
commission of the offense or the circumstances thereof.
An accomplice is hereby defined as one who is liable to
prosecution for the identical offense charged against the defendant
on trial in the cause in which the testimony of the accomplice is
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given.
CALCRIM No. 335 is currently used to instruct juries of the accomplice
corroboration requirement. While the instruction requires supporting
evidence independent of the accomplice’s testimony that tends to connect
the defendant to the commission of the crime, it adds:
Supporting evidence, however, may be slight. It does not need to be
enough, by itself , to prove that the defendant is guilty of the charged
crime, and it does not need to support every fact . . . about which the
accomplice testified.
The instruction also informs the jury that accomplices may not corroborate
each other:
The evidence needed to support the testimony of one accomplice
cannot be provided by the testimony of another accomplice.
The Commission considered whether California should have a statutory
requirement of corroboration for the testimony of in-custody informants, and
whether that requirement should track the current requirements for
accomplice testimony. The Commission concluded that the testimony of incustody informants potentially presents even greater risks than the testimony
of accomplices, who are incriminating themselves as well as the defendant.
Using the language of the accomplice corroboration requirement, however,
would not address the frequent use of in-custody informants in death penalty
cases to prove special circumstances or provide evidence for aggravation of
the penalty. In such cases, there will invariably be some supporting
evidence tending to connect the defendant to the commission of the crime.
The jury should be instructed that a finding of a special circumstance, or a
finding of a circumstance of aggravation, may not be based solely upon the
uncorroborated testimony of an arrested or charged informant, and the
corroboration should independently tend to connect the defendant with the
special circumstance or circumstance of aggravation. And just as with
accomplices, in-custody informants should not be permitted to corroborate
each other. The jury should not be instructed that corroborating evidence
“may be slight.” A statutory requirement embodying these suggestions is
included among the Commission’s recommendations.

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Arrested or Charged Informants Who Are Not in Custody.
The Commission considered whether the prosecutorial policies
governing the use of in-custody informants and the statutory requirement of
corroboration should be extended to all informants, whether they are in
actual custody at the time they allegedly acquire information concerning the
case of another accused, or are at liberty either because they have not yet
been arrested on pending charges or have been freed on bail or recognizance
pending resolution of the charges against them. Here, grave concerns were
expressed to insure that “informant testimony” is not defined so broadly that
it encompasses citizen informants, or those responding to offers of rewards.
Nor should it reach the use of informants used to supply probable cause for
arrests or searches, but who never testify at trial. Not every witness who
testifies to hearing a statement made by the defendant should be included,
simply because they may have some expectation of benefit from their
testimony. But the peculiar risks created by informants who may have some
expectation of leniency or reward from their testimony are similar,
regardless of whether the accused and the informant are both in custody at
the time of the alleged statements. Therefore, the Commission recommends
that, whenever feasible, an express agreement in writing should describe the
range of recommended rewards or benefits that might be afforded in
exchange for truthful testimony by an arrested or charged informant,
whether the informant is in custody or not. A minority of the
Commissioners would also support an expansion of the definition of the
informants included in Penal Code Sections 1127a, 1191.25 and 4001.1, to
include all arrested or charged informants, and an extension of the
requirement of corroboration to all arrested or charged informants. 3

RECOMMENDATIONS
(A) The California Commission on the Fair Administration of Justice
recommends that, whenever feasible, an express agreement in writing should
describe the range of recommended rewards or benefits that might be
afforded in exchange for truthful testimony by an arrested or charged
informant.

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Commissioners Bellas, Hersek, Hing, Judge, Laurence, Ridolfi and Streeter.

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(B) The California Commission on the Fair Administration of Justice
recommends that, wherever feasible, California District Attorney Offices
adopt a written internal policy to govern the use of in-custody informants.
The policy should provide:
(1) The decision to use the testimony of an in-custody informant be
reviewed and approved by supervisory personnel other than the deputy
assigned to the trial of the case;
(2) The maintenance of a central file preserving all records relating to
contacts with in-custody informants, whether they are used as witnesses
or not;
(3) The recording of all interviews of in-custody informants conducted by
District Attorney personnel;
(4) The corroboration of any testimony of an in-custody informant by
evidence which independently tends to connect the defendant with the
crime, special circumstance or circumstance in aggravation to which the
informant testifies.
(C) The California Commission on the Fair Administration of Justice
recommends the enactment of a statutory requirement of corroboration of incustody informants, similar to the current requirement of the corroboration
of accomplices contained in Penal Code Section 1111.
The statute should provide:
A conviction can not be had upon the testimony of an in-custody
informant unless it be corroborated by such other evidence as shall
independently tend to connect the defendant with the commission of
the offense or the special circumstance or the circumstance of
aggravation to which the in-custody informant testifies. Corroboration
is not sufficient if it merely shows the commission of the offense or
the special circumstance or the circumstance in aggravation.
Corroboration of an in-custody informant cannot be provided by the
testimony of another in custody informant.
An in-custody informant is hereby defined as a person, other than a
codefendant, percipient witness, accomplice or coconspirator whose
testimony is based upon statements made by the defendant while both
the defendant and the informant are held within a correctional
institution.

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A jury should be instructed in accordance with the language of this statute.
A jury should not be instructed that corroborating evidence may be slight, as
in CALCRIM No. 335.
(D) The California Commission on the Fair Administration of Justice
recommends that training programs for California prosecutors, defense
lawyers, judges and police investigators include a component addressing the
use of arrested or charged informants as witnesses.
Respectfully submitted,
California Commission on the Fair Administration of Justice:
John K. Van de Kamp, Chair
Jon Streeter, Vice Chair
Sheriff Lee Baca, Los Angeles County Sheriffs Dept.
Diane Bellas, Alameda County Public Defender
Harold O. Boscovich, Jr., Danville
Chief William Bratton, Los Angeles Police Department
Glen Craig, Sacramento
Jim Fox, San Mateo County District Attorney
Rabbi Allen Freehling, Los Angeles
Michael Hersek, California State Public Defender
Prof. Bill Hing, University of California at Davis
Michael P. Judge, Los Angeles County Public Defender
Bill Lockyer, California Attorney General
George Kennedy, Santa Clara County District Attorney
Michael Laurence, Habeas Corpus Resource Center
Alejandro Mayorkas, Los Angeles
Judge John Moulds, Sacramento
Prof. Cookie Ridolfi, Santa Clara University School of Law
Douglas Ring, Santa Monica
Greg Totten, Ventura County District Attorney
Gerald F. Uelmen, Executive Director
Chris Boscia, Executive Assistant
California Commission on the Fair Administration of Justice
900 Lafayette St., Suite 608, Santa Clara, California 95050
Telephone 408-554-5002; FAX 408-554-5026
Website: http://www.ccfaj.org.

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