Attorney General Grewal Issues Statewide Directive to Prosecutors Regarding Testimony of Jailhouse Informants

TRENTON – Attorney General Gurbir S. Grewal today issued a statewide directive to law enforcement to ensure that best practices are followed by prosecutors in evaluating testimony from jailhouse informants and deciding when to call them as witnesses.

Directive 2020-11 states that prosecutors have a special obligation to ensure that testimony they elicit from witnesses is honest and accurate.  The Directive notes that jailhouse informants warrant special attention because they generally do not have firsthand knowledge of a crime and instead have heard a suspect make incriminating statements while in jail or prison.

In December 2019, AG Grewal announced the “Excellence in Policing” initiative, a comprehensive package of statewide law enforcement policies designed to enhance public safety and public trust by promoting professionalism, accountability, and transparency in law enforcement.  That package included new procedures for timely disclosure by prosecutors of exculpatory evidence known as Brady and Giglio evidence, including evidence that may be used to impeach government witnesses.  Directive 2020-11 builds on those measures by establishing procedural safeguards to ensure the reliability of jailhouse informant testimony.

“Our mission as prosecutors and members of law enforcement is not simply to rack up convictions, but to ensure that truth and justice prevail in every investigation and criminal prosecution,” said Attorney General Grewal.  “We are always looking for ways to improve our policies and procedures, and this directive will ensure that best practices are followed in dealing with jailhouse informants and the risks they can potentially present as witnesses.”

Directive 2020-11 requires that, prior to calling a jailhouse informant as a witness, prosecutors must obtain approval from the County Prosecutor or, in cases prosecuted by the Attorney General’s Office, the Director of the Division of Criminal Justice, Insurance Fraud Prosecutor, or Director of the Office of Public Integrity & Accountability.

The Directive further requires that, in seeking approval, the prosecution team must fully inform the Prosecutor or Director about, among other things, the criminal history of the informant, any benefit offered to the informant, the details of the inculpatory statement allegedly made by the defendant, and any information relevant to the informant’s credibility.

In deciding whether to approve the use of the jailhouse informant as a witness, the Directive stipulates that the Prosecutor or Director shall ensure that the prosecution team has satisfied its obligations to provide discovery to the defense and that there is independent, credible evidence corroborating the testimony of the jailhouse informant.

In recent years, a number of states, including Connecticut, Nebraska, Illinois, and Texas, have enacted laws establishing similar procedural safeguards to ensure the reliability of jailhouse informant testimony. Today’s directive is believed to be the first time a state attorney general has imposed such safeguards on a statewide basis.

Over the past three years, Attorney General Grewal has issued a series of statewide directives designed to promote confidence in the criminal justice system, including:

• AG Directive 2018-6: Limiting voluntary cooperation between local law enforcement officers and federal civil immigration authorities;
• AG Directive 2019-4: Requiring independent investigations of criminal cases involving police use-of-force or in-custody deaths;
• AG Directive 2019-6: Requiring that County Prosecutors establish policies to comply with Brady and Giglio; and
• AG Directive 2020-5: Requiring the public disclosure of identities of law enforcement officers who commit serious disciplinary violations.

Directive 2020-11 is posted at:  https://www.nj.gov/oag/dcj/agguide/directives/ag-Directive-2020-11_Jailhouse-Informants.pdf