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Criminology Snitching and Use of Criminal Informants
by
Alexandra Natapoff

Introduction

Criminal informants occupy a central role in the US criminal system. Police rely heavily on criminal suspects to obtain information and get warrants, whereas prosecutors often use defendants as information sources in exchange for dropped charges or shorter sentences. This is particularly true in drug cases, which comprise approximately 30 percent of state and federal dockets but are not limited to that arena. The informant deal is widely used in every class of offense, from white-collar crime to child pornography to murder. Although many types of people give information to the government, criminal informants constitute a uniquely important and problematic class of witness because they are offenders who trade information in exchange for leniency for their own offenses. Unlike whistle-blowers or citizens who call 911, criminal informants (sometimes referred to as snitches) provide information in hope of escaping punishment for their own crimes, which has contributed to their well-documented unreliability, among other issues. At the same time, because the government tolerates or even forgives informants’ criminal activities, the informant deal has become a problematic crime-management policy in its own right as well as an independent source of crime in some instances. Criminal informant policies have wide-ranging legal, cultural, and racial implications. For example, because drug enforcement—and thus informant use—is concentrated in poor, minority communities, those neighborhoods have been overexposed to the phenomenon. Consequences include increased crime and violence, unreliable evidence used in warrants and prosecutions, and community distrust of police. The so-called stop snitching phenomenon expressed in rap music and other aspects of popular culture is in part a result of this dynamic. Criminal informants have also been important features in the evolution of the Federal Bureau of Investigation (FBI), the white-collar enforcement strategies of the US Department of Justice, and most recently the war on terror. Finally, the law of informant use is changing; legislatures and governmental commissions in New York, California, Texas, Illinois, and Florida, among others, have considered or passed legal reform.

General Overviews

The general scholarly overview of criminal informant use is a relatively new phenomenon, largely because snitching has only recently been given its due as a topic of study. Journalistic attention was first made by Curriden 1995 in an influential series in the National Law Journal. Bickel 1999 is a Frontline documentary on the culture of snitching, and Brown 2007 captures many of the current worries about informants in federal drug enforcement. Bloom 2002 was the first academic treatment devoted entirely to the law of informants, whereas Natapoff 2009 broadens the legal discussion to include cultural, political, and racial issues. Fitzgerald 2007 provides a practical overview of legal and managerial issues. Although not addressing informants exclusively, Marx 1988 initiated the academic discussion twenty years ago by theorizing the general challenges posed by all undercover police work.

  • Bickel, Ofra, dir. 1999. Frontline: Snitch. Boston: PBS Video.

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    Originally broadcast 12 January 1999. One of the first television treatments of the pervasiveness of criminal informant use, especially in drug cases, and an exploration of the human costs. Transcript available online.

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  • Bloom, Robert M. 2002. Ratting: The use and abuse of informants in the American justice system. Westport, CT: Praeger.

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    A legal survey of the law of informant use organized around four high-profile case studies illustrating legal issues, such as the Fourth Amendment’s search-and-seizure law, the right to counsel, and immunity. Appropriate for law school and graduate school courses.

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  • Brown, Ethan. 2007. Snitch: Informants, cooperators, and the corruption of justice. New York: PublicAffairs.

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    This journalistic survey of seven stories involving informants (each case has an in-depth chapter) is framed by a broad description of the war on drugs. The focus is federal cases, with heavy emphasis on how mandatory minimum sentences and the US Sentencing Guidelines enshrined cooperation as a central feature of federal drug investigations and cases.

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  • Curriden, Mark. 1995. The informant trap: Secret threat to justice. National Law Journal (20 February): 1.

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    An early investigation into the widespread and unregulated use of informants, especially in connection with warrant applications and forfeiture law. This article was one of the first to argue that informant use is secretive, unreliable, and a systemic problem for the criminal process.

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  • Fitzgerald, Dennis G. 2007. Informants and undercover investigations: A practical guide to law, policy, and procedure. Boca Raton, FL: CRC.

    DOI: 10.1201/9780849304132Save Citation »Export Citation »E-mail Citation »

    Practical overview of the wide range of legal and management issues that arise in the informant arena with the focus on law enforcement and defense from the perspective of a former Drug Enforcement Agency (DEA) agent. The book surveys types of informants and their motivations and the recruiting process as well as challenges faced by different agencies and different types of criminal investigations.

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  • Marx, Gary T. 1988. Undercover: Police surveillance in America. Berkeley: Univ. of California Press.

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    The classic sociological text on undercover police surveillance—including but not limited to the use of informants—and its impact on the changing nature of modern social control. The book compares international undercover approaches before examining various US techniques, such as undercover police officers, technological surveillance, stings, informants, and others.

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  • Natapoff, Alexandra. 2009. Snitching: Criminal informants and the erosion of American justice. New York: New York Univ. Press.

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    A comprehensive overview of all aspects of informant use, from drug snitching to hip-hop music, from the struggle of the Federal Bureau of Investigation with its Mafia informants to white-collar crime and corporate cooperation. Includes legal, sociological, and cultural analyses with special attention to the impact of informant policies on poor minority communities.

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Types of Informants

Informants of all kinds are used to investigate and prosecute every type of criminal offense. Although the general governing law and basic challenges remain the same, each class of informant use tends to develop its own culture, and research has likewise tended to treat each class of informant on its own.

Drug Informants

Numerous journalistic articles have been written on drug snitch debacles. Some of the most comprehensive are Balko 2008, which discusses the treatment of the professional jailhouse snitch ring discovered in a federal Louisiana prison, and Levine 1996, which explores Drug Enforcement Agency (DEA) informants. The six-city study in Williams and Lynn Guess 1981 analyzes the structural challenges facing police who rely on drug informants.

  • Balko, Radley. 2008. Guilty before proven innocent: How police harassment, jailhouse snitches, and a runaway war on drugs imprisoned an innocent family. Reason 40.1 (May): 42–55.

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    This article documents the case of Ann Colomb and her family, who were wrongfully convicted of drug dealing based on the testimony of dozens of jailhouse snitches. The case revealed the existence of a for-profit snitch ring in the local federal prison in which inmates bought and sold information about suspects and then used that information to obtain sentence reductions.

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  • Levine, Michael. 1996. King rats: Criminal informants are the real winners in the DEA’s drug war. Utne Reader (May–June): 87–95.

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    Levine is a former DEA agent who writes critically about the dynamics of DEA informant use. This article chronicles the story of an innocent man framed by a DEA criminal informant and also provides a more general overview of how DEA informants are permitted to commit crimes and produce poor evidence while earning large amounts of money.

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  • Williams, Jay, and L. Lynn Guess. 1981. The informant: A narcotics enforcement dilemma. Journal of Psychoactive Drugs 13.3: 235–245.

    DOI: 10.1080/02791072.1981.10471578Save Citation »Export Citation »E-mail Citation »

    This was an eighteen-month study of narcotics enforcement in six large cities identifying major challenges that arise from law enforcement’s dependence on drug informants. For example, the fact that police must supply informants with drugs and tolerate their criminality gives rise to ethical dilemmas. Police also had difficulty controlling drug informants and checking their reliability.

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Jailhouse Snitches

Jailhouse snitches have become paradigmatic of the criminal informant challenge, and a great deal of legislative, scholarly, and journalistic attention has been paid to them. The Report of the 1989–90 Los Angeles County Grand Jury was the first major governmental exploration of the issue; Canada followed with the Report of the Kaufman Commission on Proceedings Involving Guy Paul Morin. Warden 2004 elevated the issue for the innocence movement with its conclusion that snitches constitute the single largest source of wrongful capital convictions in the United States.

Juvenile Informants

Most states do not formally regulate the state’s ability to convert juvenile suspects into informants. The issue occasionally rises to the fore when a young informant is harmed or killed, and a few scholars have examined the issue. Dennis 2009 comprehensively surveys the field.

  • Dennis, Andrea. 2009. Collateral damage? Juvenile snitches in America’s “wars” on drugs, crime, and gangs. American Criminal Law Review 46.3: 1145–1190.

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    A thorough survey of the law as it pertains to juvenile informants and the detrimental impact that becoming an informant can have on a young person. Dennis argues that the use of juvenile informants should be curtailed in light of the state’s special obligation to protect children.

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White-Collar Informants

White-collar cooperation is becoming an increasingly important issue, as informant tactics common to drug enforcement seep into fraud, computer, and other white-collar arenas. Although nonviolent offenders have long entered into cooperation agreements, as described by Richman 1995, federal prosecutors and agencies are turning increasingly to the informant-cooperation model. The special challenges of the cooperating employee and corporation are described by Podgor 2002 and Griffin 2007. Occasionally a high-profile cooperating executive, such as Mark Whitacre, as described in the exhaustive account in Eichenwald 2000, reveals that white-collar criminal informants can be just as challenging as their drug-dealer counterparts.

  • Eichenwald, Kurt. 2000. The informant: A true story. New York: Broadway Books.

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    Eichenwald is the investigative journalist who covered this story for the New York Times. The Federal Bureau of Investigation (FBI) relied on Mark Whitacre, a high-level executive at Archer Daniels Midland, to obtain inside information about the company’s price-fixing. Whitacre turned out to be a double-edged sword. The story is particularly revealing of the extent to which government officials can become dependent on and subject to the whims of their own informants.

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  • Griffin, Lisa Kern. 2007. Compelled cooperation and the new corporate criminal procedure. New York University Law Review 82.2: 311–382.

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    This article addresses the growing phenomenon of the cooperating corporation, in which a corporate entity facing criminal charges can avoid prosecution through a deferred prosecution agreement (DPA). Griffin charts the law and practices of DPAs. She criticizes the ability of prosecutors to take over cooperating corporations effectively and the lack of judicial scrutiny of the entire phenomenon.

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  • Podgor, Ellen S. 2002. White-collar cooperators: The government in employer-employee relationships. Cardozo Law Review 23.2: 795–808.

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    When a corporation is charged with a crime, both the entity and its employees may wish to cooperate with the government in order to avoid liability. This essay examines the conflicts and special issues that can arise when wrongdoing individuals and organizations compete for the benefits associated with cooperation.

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  • Richman, Daniel. 1995. Cooperating clients. Ohio State Law Journal 56.1: 69, 94–99.

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    Richman analyzes the dynamics of the cooperator-attorney relationship, the risks of cooperation, and the vital role of the defense attorney. He also examines the ethical conflicts that can arise for attorneys representing cooperating clients. Although the article is not devoted to white-collar offenders per se, it addresses issues that come up mainly for well-represented defendants with adequately resourced counsel.

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Organized-Crime Informants

The mishandling by the Federal Bureau of Investigation (FBI) of its violent Mafia informants was the first and perhaps most scrutinized arena of informant use, triggering congressional hearings (US Congress, House Committee on Government Reform 2004) and the series Attorney General’s Guidelines regarding the Use of FBI Confidential Human Sources attempting to stem the problems of crime, unreliability, and lack of accountability (Schreiber 2001). Organized-crime informants were also the original impetus for the creation of the Federal Witness Protection Program (WITSEC) (Earley and Shur 2002), which has become a national model for state efforts to encourage and protect criminal witnesses.

  • Attorney general’s guidelines regarding the use of FBI confidential human sources. 2006.

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    These are the rules governing the creation, use, documentation, supervision, and payment of FBI confidential informants. They require FBI agents to document and obtain supervisory approval for informants. They also include guidelines for authorizing informants to commit a wide variety of crimes.

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  • Earley, Pete, and Gerald Shur. 2002. WITSEC: Inside the Federal Witness Protection Program. New York: Bantam.

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    The FBI agent Gerald Shur founded the WITSEC program and revealed to the journalist Pete Earley his account of the journey, from hiding the first witnesses in safe houses to the large-scale organization that WITSEC is in the early 21st century.

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  • Schreiber, Amanda. 2001. Dealing with the devil: An examination of the FBI’s troubled relationship with its confidential informants. Columbia Journal of Law and Social Problems 34:4: 301–368.

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    Describing the FBI’s failure to self-regulate its use of confidential informants and the various debacles that ensued from 1979 to 2001.

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  • US Congress, House Committee on Government Reform. 2004. Everything secret degenerates: The FBI’s use of murderers as informants. Congressional Reports, H. Rpt. 108–414. Washington, DC: US Government Printing Office.

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    A report by the House Committee on Government Reform in which the committee documents the FBI’s informant-related malfeasance throughout the 1980s, including tolerance of murders and other serious crimes committed by FBI informants, covering up informant criminality, and lying to Congress and other governmental agencies.

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Political Informants

The Federal Bureau of Investigation (FBI) has a long and storied history of using criminal informants to infiltrate political groups. In the 1960s and 1970s such infiltrators were an important factor in the development and impediment of left-wing organizations, such as the Students for a Democratic Society (SDS), the Student Nonviolent Coordinating Committee (SNCC), the Southern Christian Leadership Conference (SCLC), the Socialist Party, and the Black Panthers (see Marx 1974). Some argue that the FBI excessively cultivated criminals and tolerated violence in its efforts to keep tabs on the civil rights movement (May 2005) and that those historical experiences have been an important undercurrent in the current debate over informant use in poor black neighborhoods (see Hill 2006, cited in Stop Snitching).

  • Marx, Gary T. 1974. Thoughts on a neglected category of social movement participant: The agent provocateur and the informant. American Journal of Sociology 80.2 (September): 402–422.

    DOI: 10.1086/225807Save Citation »Export Citation »E-mail Citation »

    A sociological analysis of the government’s use of informants to infiltrate civil rights and other political organizations during the 1960s and 1970s.

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  • May, Gary. 2005. The informant: The FBI, the Ku Klux Klan, and the murder of Viola Liuzzo. New Haven, CT: Yale Univ. Press.

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    Historical account of the FBI informant and Ku Klux Klan member Gary Thomas Rowe Jr. and his role in the murder of the civil rights worker Viola Liuzzo.

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Terrorism Informants

Informants are a central tool in the modern war on terror. Although terrorism informants share many of the same characteristics and challenges as their traditional domestic criminal counterparts, terrorism informant practices are even more clandestine and less regulated (Ward 2006). Said 2010 describes the complex legal and political challenges that arise when the government uses criminal informants to infiltrate Muslim communities. Kash 2002 explains how terrorism and narcotics trafficking activities often overlap and how such informants are compensated.

  • Kash, Douglas. 2002. Rewarding confidential informants: Cashing in on terrorism and narcotics trafficking. Case Western Reserve Journal of International Law 34.2: 231–244.

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    As a senior attorney with the Drug Enforcement Agency (DEA), Kash defends the United States against suits brought by confidential informants. He surveys some of the various reward mechanisms that exist for terrorism and drug informants and discusses the law.

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  • Said, Wadie E. 2010.The terrorist informant. Washington Law Review 85.4: 687–738.

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    A survey of informant use and prosecutions after 9/11, including Federal Bureau of Investigation (FBI) policy, the law of entrapment, and major cases. The article discusses troubling aspects of informant use in this context, including the secrecy surrounding the practices, the dangers of unreliability and entrapment, and the impact on Muslim American communities.

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  • Ward, Daniel V. 2006. Note: Confidential informants in national security investigations. Boston College Law Review 47.3: 627–657.

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    This note surveys how legal restrictions on law enforcement use of informants are further minimized in the context of national security investigations, in which many criminal procedures and disclosure rules have been eliminated. The piece examines how the Foreign Intelligence Surveillance Act (FISA) and new Department of Justice guidelines make it easier for the government to use informants to gather national security intelligence.

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Informant Law and Practice

The world of informant use can be studied from a number of perspectives. The police (see Police) tend to be on the front lines of developing and handling informants, especially in drug enforcement, and they have distinct informant practices and culture. Prosecutors (see Prosecutors) also create and rely on informants by entering into deals with charged defendants, a practice that has become prevalent under the US Sentencing Guidelines. As a legal matter, the police and prosecutors have nearly unfettered discretion to create and deploy informants, and the rewards (see Rewards) that the government can offer are nearly boundless. The few legal restraints come in the form of procedural protections for defendants who are charged based on information obtained from informants, mostly in the form of disclosure requirements. In other countries the trading of guilt and information is far more regulated than in the United States and is even forbidden in some situations (see Comparative Law).

Police

The police “handler” is typically the main government official in charge of creating and evaluating informants. The relationship between handlers and their informants is complex and often personal in nature, and it may span years. Three experienced former law enforcement officials have written books about informant management. Madinger 2000 and Mallory 2000 are written from the perspective of law enforcement efficacy: how informants can be managed or sometimes manipulated in productive ways and what pitfalls handlers face. By contrast, Fitzgerald 2007 (cited in General Overviews) takes a more legalistic and occasionally critical view. Jacobs 1997 is a sociological study that examines the interpersonal mechanics of how police use informants and their contacts to infiltrate the criminal world. From a legal perspective, the pressure the police put on their informants to cooperate has long raised concerns. Rich 2010 argues that it is a form of coercion that might be unconstitutional.

  • Jacobs, Bruce A. 1997. Contingent ties: Undercover drug officers’ use of informants. British Journal of Sociology 48.1 (March): 35–53.

    DOI: 10.2307/591909Save Citation »Export Citation »E-mail Citation »

    Sociological study of police relationships with their informants, how police use informants to infiltrate criminal organizations, and specific information and communication techniques used to convince drug dealers to interact with police they have never met.

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  • Madinger, John. 2000. Confidential informant: Law enforcement’s most valuable tool. Boca Raton, FL: CRC.

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    Madinger offers this law enforcement guide to incentivizing and handling informants. He uses case studies of informant use and legal challenges to frame his management theories, which revolve around psychological workups of informants, their motivations, and how best to incentivize and control them.

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  • Mallory, Stephen L. 2000. Informants: Development and management. Incline Village, NV: Copperhouse.

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    A one-hundred-page manual for developing and managing informants written by a former narcotics agent with twenty-five years of experience in various state and federal law enforcement agencies. Includes sample agreements, case studies, summaries of the applicable law, and proposed guidelines for law enforcement.

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  • Rich, Michael. 2010. Coerced informants and Thirteenth Amendment limitations on the police-informant relationship. Santa Clara Law Review 50.3: 681.

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    This article argues that when informants succumb to police threats pressuring them to “work off their crimes,” it constitutes a form of involuntary servitude prohibited by the Thirteenth Amendment.

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Prosecutors

Although prosecutors may rely on their agents to manage informants, prosecutors also often turn cooperative defendants into informants. In the federal system in particular, cooperation has become a fixture in investigations, plea bargaining, and sentencing. Yaroshefsky 1999 reveals how federal prosecutors think and worry about their cooperators, whereas the former prosecutor Steven M. Cohen explains the pervasiveness of the phenomenon (see Cohen 2002), and Judge Stephen S. Trott (himself a former prosecutor) famously warns prosecutors about the dangers of unreliable cooperators (see Trott 1996). From a legal perspective, Raeder 2007 and Wilson 2008 take opposing views. Raeder 2007 questions the prosecutorial ethics of using informants who by their nature are likely to be unreliable, whereas Wilson 2008 argues that prosecutors should take greater advantage of the cooperation tool to extract more information from criminal defendants.

  • Cohen, Steven M. 2002. What is true? Perspectives of a former prosecutor. Cardozo Law Review 23.3: 817–828.

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    A reflection on the dominance of cooperation in federal court, the dangers of relying on informants, and the influence they have over the direction that cases can take.

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  • Raeder, Myrna S. 2007. See no evil: Wrongful convictions and the prosecutorial ethics of offering testimony by jailhouse informants and dishonest experts. Fordham Law Review 76.3: 1413–1452.

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    This article argues that even for prosecutors who fulfill their constitutional disclosure obligations, it may constitute an ethical violation for them to rely on jailhouse informants or other informants whose reliability is clearly suspect. Raeder also proposes that prosecutors establish a commission to review cases in which jailhouse informants led to wrongful convictions in order to promote an ethical prosecutorial culture.

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  • Trott, Stephen S. 1996. Words of warning for prosecutors using criminals as witnesses. Hastings Law Journal 47.5–6: 1381–1383.

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    A former prosecutor and now a judge on the Ninth Circuit Court of Appeals, Trott is a leading critic of the system’s routine reliance on criminal informants. He warns prosecutors that informants will lie, that it is hard to tell when they are lying, and that careless informant use can undermine successful cases, lead to wrongful convictions, and end professional careers.

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  • Wilson, Melanie. 2008. Prosecutors “doing justice” through osmosis: Reminders to encourage a culture of cooperation. American Criminal Law Review 45.1: 67–113.

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    This article argues that cooperation is a valuable resource that prosecutors underutilize and that prosecutors should therefore go after and rely on tips from cooperating defendants more systemically. As part of that systemic approach to information gathering, Wilson also argues that the prosecutor’s obligation to “do justice” should inform scrutiny of cooperator tips.

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  • Yaroshefsky, Ellen. 1999. Cooperation with federal prosecutors: Experiences of truth telling and embellishment. Fordham Law Review 68.3: 917.

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    A study of prosecutorial use of and reliance on informants based on interviews with prosecutors and other attorneys in New York City. Federal prosecutors reveal discomfort with their heavy dependence on informants, their inability to be certain when their sources are lying, and the phenomenon of “falling in love with your rat.”

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Rewards

The government’s ability to threaten and reward informants is its most powerful tool. Benefits range from dropped charges to sentencing reductions to money; informants can even earn leniency for family members. Hughes 1992 discusses the traditional law and procedure of the cooperation deal, whereas Weinstein 1999 analyzes the implications of widespread cooperation deals for the federal criminal system. Kuo 2005 reviews the diverse kinds of concessions that the government can extract from informants, including the obligation to have sex with other suspects as part of the cooperation process. Alemany 2002 charts the world of paid informants under forfeiture laws.

  • Alemany, Joaquin J. 2002. United States contracts with informants: An illusory promise? University of Miami Inter-American Law Review 33:2–3: 251–272.

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    Informants often enter into agreements with the government in which they anticipate being paid under forfeiture law, which authorizes informants to receive up to 25 percent of the value of a seizure. Alemany reviews a range of breach cases and concludes that the US government may often be breaking its promises to its informants.

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  • Hughes, Graham. 1992. Agreements for cooperation in criminal cases. Vanderbilt Law Review 45.1: 1–67.

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    A procedural analysis of the typical formal cooperation agreement and the ways it differs from the traditional guilty plea. Hughes discusses the governing law, the threat to accuracy and fairness, and how cooperation agreements alter conventional criminal rules, such as the right to a speedy trial and appeal and protections against double jeopardy.

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  • Kuo, Susan S. 2005. Official indiscretions: Considering sex bargains with government informants. UC Davis Law Review 38.5: 1643–1681.

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    As part of their deals with the government, informants may be required to have sex with suspects in order to generate inculpatory evidence. This can include acting as prostitutes or entering into intimate relationships with targets. Kuo asks under what circumstances this law enforcement practice is legal and whether informants can be said to have consented to such sexual activity.

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  • Weinstein, Ian. 1999. Regulating the market for snitches. Buffalo Law Review 47:563–644.

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    This article argues that the US Sentencing Guidelines and mandatory minimum sentences made cooperation a dominant feature of the federal criminal justice system. Weinstein documents the thriving “market” for cooperation and criticizes it on a number of fronts, arguing that it increases sentencing disparity, erodes the integrity of the adversarial process, and brings relatively few concomitant crime-fighting benefits.

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US Sentencing Guidelines

The US Sentencing Guidelines make cooperation one of the only ways that federal defendants can get lower sentences, and these are widely credited with having generated much of modern informant culture. Bowman 1999 and Maxfield and Kramer 1998 address various facets of the phenomenon.

Criminal Procedure and Protections for Defendants

There are few constraints on the government’s authority to use informants and their information; the ones that do exist flow primarily from defendants’ rights in the context of informant-based evidence or prosecution. Suspects have extremely limited Fourth Amendment rights against informants who wish to gather evidence against them; this fact is exacerbated by the development of new surveillance technologies (Shokrai 2006). Particularly in the jailhouse context, innocent individuals with criminal records are vulnerable targets for and have few legal protections against informant fabrications (Mosteller 2009). Harris 2000 describes the legal and ethical dilemmas that can arise from using an informant witness who in effect is being paid by the state once a defendant is charged with a crime. Although the central protection afforded defendants is the right to receive information about the informant that might impeach his or her credibility, this does not always work; Cassidy 2004 explains why current constitutional disclosure rules are largely ineffective in this context. Morrison 2009 looks at the effect that informant confidentiality is having in the modern era of electronic access to otherwise public court records and on governmental accountability.

  • Cassidy, R. Michael. 2004. “Soft words of hope”: Giglio, accomplice witnesses, and the problem of implied inducements. Northwestern University Law Review 98.3: 1129–1178.

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    An examination of the constitutional requirement (embodied in Giglio v. United States) that the government must disclose to the defense any promises it makes to informant witnesses. The article argues that prosecutors and cooperating witnesses evade Giglio through soft, informal understandings in order to keep defendants and juries in the dark about expected posttrial benefits. Cassidy proposes rethinking disclosure requirements to compensate for this widespread evasion.

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  • Harris, George C. 2000. Testimony for sale: The law and ethics of snitches and experts. Pepperdine Law Review 28:1–74.

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    An article comparing informants and experts, pointing out that both classes of witnesses pose reliability and ethical challenges to the legal system. After surveying the law and ethical rules pertaining to each class, Harris proposes a number of reforms.

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  • Morrison, Caren Myers. 2009. Privacy, accountability, and the cooperating defendant: Towards a new role for Internet access to court records. Vanderbilt Law Review 62.3: 919–978.

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    Electronic and Internet access to criminal court records poses special problems in the informant context. This article surveys these issues, including the threat of witness intimidation, the invasion of privacy of cooperating defendants, and the legal system’s tendency to degrade information that might be made public. Morrison is concerned that public access to such information is driving the phenomenon of informant use further underground.

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  • Mosteller, Robert P. 2009. The special threat of informants to the innocent who are not innocents: Producing “first drafts,” recording incentives, and taking a fresh look at the evidence. Ohio State Journal of Criminal Law 6.2: 101–167.

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    Mosteller explores the fact that an innocent defendant with a criminal record is particularly susceptible to wrongful conviction based on a lying informant. This is because police, prosecutors, and juries are more likely to believe informant fabrications when levied against someone with a record of criminality or drug abuse, and such innocent defendants are more likely to take a plea on the theory that they will lose at trial.

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  • Shokrai, Mona. 2006. Double-trouble: The underregulation of surreptitious video surveillance in conjunction with the use of snitches in domestic government investigations. Richmond Journal of Law and Technology 13.1: 1–34.

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    State and lower federal courts are split on whether police can outfit an informant with a wire and a video camera to record suspects in their homes without a warrant. This article surveys the rapidly changing law of video surveillance and concludes that the wired informant poses a serious threat to privacy.

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Comparative Law

Many other countries take a different view of the legitimacy of compensating criminal witnesses, toleration of informant crime, and government involvement in criminal activity. Both of the essay collections, Fijnaut and Marx 1995 and den Boer 1997, contain studies of different countries and describe how some have resisted the US model of informant use whereas others have adapted to it. Jacqueline E. Ross provides an overview of both collections in Ross 2002 and an independent comparative study of informant use in the United States and Italy in Ross 2004. Skurka 2002 provides the Canadian perspective.

  • den Boer, Monica, ed. 1997. Undercover policing and accountability from an international perspective. Papers contributed to a symposium held 11–12 April 1996. Maastricht, The Netherlands: European Institute of Public Administration.

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    Collection of papers from an international symposium held in The Netherlands examining the trade-offs between undercover policing and democratic accountability.

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  • Fijnaut, Cyrille, and Gary T. Marx, eds. 1995. Undercover: Police surveillance in comparative perspective. The Hague: Kluwer.

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    A collection of essays surveying informant use and other surveillance techniques in the United States and a variety of European and other countries.

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  • Ross, Jacqueline E. 2002. Tradeoffs in undercover investigations: A comparative perspective. University of Chicago Law Review 69.3: 1501–1514.

    DOI: 10.2307/1600657Save Citation »Export Citation »E-mail Citation »

    Ross reviews and summarizes the essay collections Fijnaut and Marx 1995 and den Boer 1997. As an expert in international policing in her own right, Ross identifies the main ideological and legal barriers to international cooperation in the delicate area of covert policing.

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  • Ross, Jacqueline E. 2004. Impediments to transnational cooperation in undercover policing: A comparative study of the United States and Italy. American Journal of Comparative Law 52.3: 569–623.

    DOI: 10.2307/4144479Save Citation »Export Citation »E-mail Citation »

    This comparison of undercover policing and informant use in the United States and Italy reveals deep philosophical and legal differences between the two nations’ conceptions of covert policing, fear of corruption, and state lawlessness.

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  • Skurka, Steven. 2002. A Canadian perspective on the role of cooperators and informants. Cardozo Law Review 23.3: 759–770.

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    Skurka served as counsel to the Kaufman inquiry (Report of the Kaufman Commission on proceedings involving Guy Paul Morin, cited in Jailhouse Snitches), the Ontario commission that examined the sources of wrongful conviction in the Guy Paul Morin case and wrongful convictions in Canada more generally. This brief essay surveys the history of Canadian informant law, the reforms triggered by the Kaufman inquiry, and the challenges that remain.

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Poor High-Crime Neighborhoods

US drug enforcement is concentrated in minority neighborhoods (King 2008). At the same time, criminal informant use pervades every aspect of drug enforcement, from investigations to arrests to plea bargains. As a result, such neighborhoods are routinely exposed to informants, their crimes, and the police tactics that accompany them. These dynamics have been studied in different ways. Kahn 2007 is a detailed case study of one informant, whereas Rosenfeld, et al. 2003 interviews numerous criminal snitches in poor black neighborhoods. Miller 1996 provides a classic analysis of the criminal system’s impact on black men generally and notes the corrosive effect of informant use on urban communities. More specifically, Natapoff 2004 argues that because as many as half of the young black men in these communities may be under criminal justice supervision at any given time and because approximately half of those individuals typically face drug-related charges, a large proportion of the young male population must routinely contend with the pressure, pervasive in drug cases, to give information to the government. In these ways the war on drugs has made snitching a common fact of life in poor black communities, affecting not only how police are perceived but also how residents perceive each other. This neighborhood phenomenon, moreover, is connected to racial disparities throughout the criminal system. The Benner and Samarkos 2000 study of warrants in San Diego reveals the disproportionate use of informant-based warrants against black and Hispanic households, whereas Taslitz 2008 traces racial bias in informant use throughout the criminal decision-making process.

  • Benner, Laurence A., and Charles T. Samarkos. 2000. Searching for narcotics in San Diego: Preliminary findings from the San Diego Search Warrant Project. California Western Law Review 36:221–267.

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    The Search Warrant Project examined all search warrants issued in 1998 in San Diego. Results include evidence of heavy reliance on confidential informants, “boilerplate” warrant applications that lack specific factual articulations, and racial disparities (e.g., black San Diegans are about four times as likely to be the subject of a narcotics search warrant as are white San Diegans).

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  • Kahn, Jeremy. 2007. The story of a snitch. Atlantic Monthly 299.3 (April): 80–92.

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    A human-interest story and exploration of urban crime, violence, drugs, witness intimidation, and the culture of informing in inner-city Baltimore. The article follows a criminal informant who was shot for cooperating with the police and includes interviews with police, residents, and criminal justice personnel.

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  • King, Ryan. 2008. Disparity by geography: The war on drugs in America’s cities. Washington, DC: Sentencing Project.

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    A study of drug arrest rates by race for forty-three American cities, demonstrating extreme variation by city. Includes data on cities in which black drug arrests rose by more than 500 percent between 1980 and 2003.

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  • Miller, Jerome. 1996. Search and destroy: African-American males and the criminal justice system. Cambridge, UK: Cambridge Univ. Press.

    DOI: 10.1017/CBO9780511621574Save Citation »Export Citation »E-mail Citation »

    This is one of the classic treatments of the criminal system’s harsh and disproportionate treatment of young black men. Miller notes that turning suspects into snitches contributes to neighborhood violence and erodes social bonds.

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  • Natapoff, Alexandra. 2004. Snitching: The institutional and communal consequences. University of Cincinnati Law Review 73.2: 645–704.

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    The first scholarly article to argue that using criminal informants has a disproportionate impact on poor African American neighborhoods. Extrapolating from drug enforcement statistics and the prevalence of snitching in drug investigations, the piece concludes that a significant percentage of young black men in poor communities are under pressure to snitch, affecting broader community relations and perceptions of law enforcement.

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  • Rosenfeld, Richard, Bruce A. Jacobs, and Richard Wright. 2003. Snitching and the code of the street. British Journal of Criminology 43.2: 291–309.

    DOI: 10.1093/bjc/43.2.291Save Citation »Export Citation »E-mail Citation »

    This sociological study includes interviews of numerous street snitches and provides a concrete look at the workings of informant culture. Among other things, the study documents the coercion that street snitches experience from the police and how widespread snitching increases street violence. The study concludes that nearly all street criminals cooperate with the police in some way.

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  • Taslitz, Andrew E. 2008. Wrongly accused redux: How race contributes to convicting the innocent; The informants example. Southwestern University Law Review 37:1091–1148.

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    This article discusses several racially driven feedback effects that tend to produce wrongful convictions and other inaccuracies. These include racial biases in how police select targets and interpret evidence, how the justice system handles minority defendants, and how black communities react to these law enforcement biases. Taslitz argues that these effects infect informant use, making informants a source of racial disparity in wrongful convictions.

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Stop Snitching

The term “stop snitching” first became popular around 2004, appearing on T-shirts in Boston and in a Baltimore underground DVD titled Stop F—ing Snitching. Since then, “stop snitching” has developed into a loaded and heavily debated term encompassing a number of phenomena. Hill 2006 explains how the idea morphed from a criminal street code of loyalty into an expression of distrust of the police as well as a popular motif in hip-hop and rap music. Others treat “stop snitching” as a threat of witness intimidation. Whitman and Davis 2007 probes youth fears and attitudes in this regard in a Massachusetts study, and Amber 2007 traces the experience of a threatened witness in Baltimore, a city that has become intimately associated with the motto. “Stop snitching” often serves as a fulcrum for debate over police-community relations in poor urban neighborhoods, particularly when residents fail to report crime information to the police, and Tyler and Fagan 2008 offers a useful theoretical framework for understanding the dynamic. Miller 1999 studies the impact of pervasive informant use in Cold War East Germany and provides additional insight into how communities can be affected by snitching policies. Honigman 2009 surveys instances where the use of the “stop snitching” motto in songs and on garments has been treated as a criminal act.

Reforms and Research

Legislatures and commissions around the country are starting to consider reforming how informants are created and used. This trend is largely due to two phenomena. First, the innocence movement has produced compelling data that informants, especially jailhouse snitches, have been a significant source of wrongful conviction in death penalty cases (Warden 2005; Scheck, et al. 2000). Second, an increasing number of scandals—typically related to drug enforcement—involved innocent people who were accused, convicted, or otherwise harmed based on information from criminal informants (see Drug Informants). As a result, Congress has held several hearings, and new legislation has been introduced. In addition, numerous states, including New York, California, Texas, Illinois, and Florida, have initiated various reform efforts (Illinois Governor’s Commission on Capital Punishment 2002). The types of reform include new trial procedures, limitations on informant witnesses, better education for juries, and improved data collection and controls on how law enforcement creates and rewards informants in the first place. Joy 2007 surveys some of these reforms and proposes additional ones. The increased visibility of the informant issue has also triggered new psychological research into how informants respond to incentives (Swanner, et al. 2010; Swanner and Beike 2010) and how juries respond to informants (Neuschatz, et al. 2008).

  • Illinois Governor’s Commission on Capital Punishment. 2002. Report of the Governor’s Commission on Capital Punishment. Springfield, IL: Governor’s Commission on Capital Punishment.

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    Report by the state commission formed to evaluate the sources of wrongful conviction in Illinois’s death penalty system. This study concluded that unreliable informants were a key factor in the state’s wrongful conviction problem; the commission’s recommendations led directly to legal reforms.

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  • Joy, Peter A. 2007. Brady and jailhouse informants: Responding to injustice. Case Western Reserve Law Review 57.3: 619–650.

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    Surveying the challenges of unreliable informants and the frequency with which prosecutors fail to meet their Brady disclosure obligations, this article discusses recent reform proposals by the American Bar Association and makes additional recommendations for prosecutors and judges.

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  • Neuschatz, Jeffrey S., Deah S. Lawson, Jessica K. Swanner, Christian A. Meissner, and Joseph S. Neuschatz. 2008. The effects of accomplice witnesses and jailhouse informants on jury decision making. Law and Human Behavior 32.2: 137–149.

    DOI: 10.1007/s10979-007-9100-1Save Citation »Export Citation »E-mail Citation »

    The criminal system depends heavily on juries to decide whether informants are lying. This psychological study demonstrated that even when jurors knew that informants were getting a benefit, jurors were no more likely to disbelieve those informants and were just as likely, if not more likely, to convict the defendants against whom the informants testified.

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  • Scheck, Barry, Peter Neufeld, and Jim Dwyer. 2000. Actual innocence: Five days to execution and other dispatches from the wrongly convicted. New York: Doubleday.

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    Landmark book from the launch of the Innocence movement describing ten cases in which innocent men were convicted and then exonerated through the work of the Innocence Project. The book estimates that approximately 20 percent of wrongful capital convictions are the result of a lying informant.

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  • Swanner, Jessica K., Denise R. Beike, and Alexander T. Cole. 2010. Snitching, lies, and computer crashes: An experimental investigation of secondary confessions. Law and Human Behavior 34.1: 53–65.

    DOI: 10.1007/s10979-008-9173-5Save Citation »Export Citation »E-mail Citation »

    A secondary confession is when one person (e.g., an informant) relates the purported confession of another. This study examined the impact of providing incentives to secondary confessors, and it found that incentives produced more false secondary confessions, that is, that incentivized secondary confessors were more likely to assert falsely that primary subjects confessed to wrongdoing even when they did not.

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  • Swanner, Jessica K., and Denise R. Beike. 2010. Incentives increase the rate of false but not true secondary confessions from informants with an allegiance to a suspect. Law and Human Behavior 34.5: 418–428.

    DOI: 10.1007/s10979-009-9212-xSave Citation »Export Citation »E-mail Citation »

    This follow-up to Swanner, et al. 2010 tested the hypothesis that an informant who knows, or is otherwise close to, a suspect might be reluctant to give information, that is, would be less likely to provide a secondary confession. The study concluded that incentives produced more false secondary confessions and that closer relationships did not appear to deter incentivized informants from giving false information.

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  • Warden, Rob. 2005. Illinois death penalty reform: How it happened, what it promises. Journal of Criminal Law and Criminology 95.2: 381–426.

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    A description and analysis of Illinois’s comprehensive death penalty system reforms, much of which pertains to the use of informants. Reforms include the new requirement that courts must hold pretrial “reliability hearings” to evaluate the reliability of any jailhouse informant that the government wishes to use as a witness in a capital case.

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LAST MODIFIED: 04/24/2012

DOI: 10.1093/OBO/9780195396607-0044

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