The police regularly use confidential informants to gather information about criminal activity. The use of confidential informants is legal and an important tool in law enforcement’s tool box. But the practice of recruiting jail house informants is often illegal. So what’s the difference?

Most people in jail are represented by attorneys. When law enforcement attempts to get a pre-trial confession or find out information about a crime using a jailhouse snitch, the constitutional rights of the inmate may be violated if law enforcement attempts to discover the incriminating evidence without the presence of the inmate’s attorney. While there is no violation if an inmate volunteers incriminating evidence to another inmate and the receiving inmate takes that information to law enforcement, purposefully recruiting an inmate to elicit the incriminating evidence is illegal as it implies a violation of the inmate’s Sixth Amendment right to counsel.

Violation of this right recently got the Orange County Sheriff’s Department and the Orange County District Attorney’s office in a lot of hot water. It has come to light that the Orange County Sheriff’s Department has been running a jailhouse snitch program since 1990 and passing the information to the Orange County District Attorney’s Office. The program, known as TRED, was kept secret until one Orange County Defense attorney dug in his heels and ultimately forced exposure of the program.

The revelation became quite a scandal, gaining extensive national press, and ended in the recusal of the entire office of the Orange County District Attorney on a high-profile murder case. As more information about TRED was exposed, it became evident that the Sheriff’s Department and the District Attorney’s Office were collaborating not only recruit jailhouse informants but to manipulate evidence and withhold exculpatory evidence discovered in the process.

The integrity of the Orange County District Attorney’s office has been called into question by this unconstitutional misuse of jailhouse snitches, which by all accounts was entrenched and systemic. In a separate murder trial, the conviction of the defendant was overturned, and a new trial ordered, when the court found failures in the prosecution’s evidence that violated the defendant’s constitutional rights. Again, these violations concerned the prosecution’s illegal use of a jailhouse informant and other discovery abuses.

Those supporting the prosecution’s tactics may argue that by protecting the criminal, society loses. But this is not a matter of protecting criminals, this is about protecting the Constitutional rights that we are all afforded. Every defendant is entitled to the right of counsel and to the right to any exculpatory evidence discovered by the prosecution. By trampling on these rights, the Orange County District Attorney’s Office sought to rise above the law.

If you have been accused of a crime, you are entitled to the right to counsel. If you have questions regarding your criminal defense matter, please feel free to contact me to set up a confidential consultation without charge. www.bill@william 949-474-8008.