Law Commission recommends that New Zealand’s common and controversial use of ‘jailhouse snitches’ in our courts needs to become stricter as part of their review of the Evidence Act

​In their most recent report – the third review of the Evidence Act 2006, the Law Commission strongly recommended that highly controversial ‘evidence’ from ‘jailhouse snitches’ should be inadmissible. The Commission said that unless numerous factors can convince a judge the confession is reliable, these confessions should not be used due to their notorious unreliability.  
 
The Law Commission is responsible for reviewing the suitability of our current laws and making recommendations to the Government to improve them. On 23 February 2024, the Commission completed its third review of the Evidence Act 2006, which was submitted to the Minister of Justice, and this report was presented to Parliament on 22 March 2024. Only three of the submitters were not in support of any of the options for change it proposed. Many academics and lawyers agree that this is an area of evidence law where greater caution must be taken.
 
Prison informants or ‘jailhouse snitches’ refer to prisoners who come forward claiming that a fellow inmate confided or confessed details or doings of a crime. In compensation for offering their evidence, jailhouse snitches are often bribed with the promise of better prison conditions, reduced sentences for their convictions, and even the possibility of financial rewards. The committee described this as an unwritten and unregulated system in which prisoners know they will be rewarded if they come forward with a claim that another individual confessed. Obviously, this raises concerns about the credibility and reliability of such evidence.
 
Previously, when the problematic nature of these witnesses was raised, the Crown argued that it was for the jurors to ascertain whether the prisoner was telling the truth about their fellow inmate. However, as part of the Law Commission's review of the Evidence Act, the recommendation is to normally exclude such evidence unless it is proven, on the balance of probabilities, to a judge that what they are claiming they heard or were told is reliable.
 
New Zealand courts are not unfamiliar with such instances. Many of our high-profile cases feature a ‘jailhouse snitch’, including David Tamihere, Scott Watson, Mark Lundy, and Stephan Hudson, including the infamous wrongful convictions of Teina Pora and Arthur Allan Thomas. Back in 2017, notorious jailhouse snitch Roberto Harris was convicted of eight counts of perjury for the false evidence he gave against David Tamihere at his murder trial.
 
Prosecutors frequently use these confessions in high-profile cases and often can persuade a jury. However, research has shown that the use of such evidence is one of the leading causes of wrongful convictions worldwide. Wellington Barrister Christopher Stevenson says this has been an urgent issue since 1980 and has contributed to many terrible miscarriages of justice. He predicts that if the Evidence Act were amended to make it almost impossible for snitches to give their claims in court, their willing offers to provide evidence would cease as there would be few incentives for them to come forward. Our previous justice minister, Andrew Little, described prison informants as “abject liars”. Further, he said it was “embarrassing to the reputation of our justice system that we’re one of the few countries in the world that still regularly rely on this evidence.”.
 
The Auckland District Law Society’s Criminal Law Committee says that the fact that a ‘snitch’ appears in almost every high-profile case in this country cannot be seen as a coincidence, and it is a “national disgrace”. Police have been known to trawl through prisons, seeking out this category of evidence so they can close their case. Anna High, from the University of Otago, said there could be other wrongful convictions in New Zealand that relied on false jailhouse snitch evidence. She urges the Government to listen to the view of the Law Commission, which is “based on research, on a comprehensive analysis of the issue, and intensive consultation.”
 
ADLS CLC believes that implementing such presumption regarding prison informant evidence being inadmissible is the only realistic safeguard to prevent further miscarriages of justice. A statutory presumption that excludes prison informant evidence would be the safest path forward except in exceptional circumstances where the prosecution could prove beyond a reasonable doubt that the evidence is truthful—for example, the discovery of a body. To determine reliability, the Commission recommends that a judge considers if their claims led to the discovery of other evidence, whether the informant could have learnt of the evidence elsewhere, whether any incentives have been offered or received for the evidence, or whether the person giving the evidence has a history of lying or offered ‘snitch’ evidence previously.
 
Ultimately, the Law Commission can only make recommendations about the suitability of the laws, and it is up to the Government to decide if they agree and want to amend the Evidence Act to restrict this type of highly problematic evidence.