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CELLMATE.TXT
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1991-01-08
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December 1990
CELLMATE INFORMANTS:
A CONSTITUTIONAL GUIDE TO THEIR USE
By
Kimberly Kingston Crawford, J.D.
Special Agent and Legal Instructor
FBI Academy
Quantico, Virginia
In recent years, legal scholars have debated the legality
and propriety of using cellmate informants. While some scholars
find the practice a "mere strategic deception [that takes]
advantage of a suspect's misplaced trust in one he supposes to be
a fellow prisoner," (1) others view the use of cellmate informants
as being "so offensive to a civilized system of justice that
[the practice] must be condemned." (2) Despite this debate, law
enforcement officers appear to have a unanimous opinion
regarding the use of cellmate informants--it is a technique that
works. Fortunately, the U.S. Supreme Court recently decided
Illinois v. Perkins, (3) which is a case that while not putting an
end to the debate, answers some questions regarding the
constitutionality of using cellmate informants and paves the way
for law enforcement officers to take advantage of this most
effective technique.
This article focuses on the decision in Perkins and examines
similar cases that deal with the constitutional issues involved
in using cellmate informants. More specifically, this article
addresses the fifth and sixth amendment considerations that must
be taken into account when placing an informant in a suspect's
cell.
FIFTH AMENDMENT--SELF-INCRIMINATION CLAUSE
While serving a 6-year sentence for burglary at the Graham
Correctional Facility in Hillsboro, Illinois, Donald Charlton met
and befriended fellow inmate Lloyd Perkins. In the course of
their friendship, Perkins confided in Charlton the details of a
murder he had committed in East St. Louis. Believing that
"people should not kill people," (4) Charlton eventually relayed
this information to law enforcement officials. Because the
information provided by Charlton tracked very closely the facts
of an unsolved case under investigation in East St. Louis,
officers found Charlton's story to be credible and decided to
pursue the matter further. Accordingly, it was decided that
undercover agent John Parisi, assuming the alias "Vito Bianco,"
would accompany Charlton to the Montgomery County Jail, where
Perkins was incarcerated on an unrelated charge of aggravated
assault.
After being booked and photographed, Parisi and Charlton
were placed in a cellblock with Perkins. Charlton introduced
Parisi to Perkins as a fellow inmate from the Graham Correctional
Facility. Parisi and Charlton led Perkins to believe that they
had escaped from a work release program at Graham and had gotten
as far as Montgomery County when their money and their luck ran
out. During the conversation that ensued, Parisi advised Perkins
that he "wasn't going to do any more time," (5) and suggested that
they attempt another escape. Perkins readily agreed and
volunteered his girlfriend to smuggle in a pistol. When asked if
he had ever "done" anyone, Perkins described at length the
details of the East St. Louis killing. The following day,
Perkins was charged with murder.
Prior to trial, Perkins moved to suppress the statements
made to Charlton and Parisi while in the Montgomery County Jail.
Because no Miranda (6) warnings had been given to Perkins prior to
his conversation with Parisi and Charlton, the trial court
granted Perkins' motion to suppress. The Appellate Court of
Illinois, holding that all undercover contacts with prisoners
that are reasonably likely to elicit incriminating responses
violate the rule in Miranda, affirmed the suppression order. (7)
The U.S. Supreme Court reviewed the decision of the Appellate
Court of Illinois and reversed. In doing so, the Court focused
on the fifth amendment protection against self-incrimination,
which is the linchpin of the Miranda rule.
The fifth amendment to the U.S. Constitution provides in
part that "no person...shall be compelled in any criminal case
to be a witness against himself...." (8) Over 2 decades ago, the
Supreme Court in Miranda v. Arizona (9) held that custodial
interrogation of an individual creates a psychologically
compelling atmosphere that works against this fifth amendment
protection. (10) In other words, the Court in Miranda believed
that an individual in custody undergoing police interrogation
would feel compelled to respond to police questioning. This
compulsion, which is a byproduct of most custodial
interrogation, directly conflicts with every individual's fifth
amendment protection against self-incrimination. Accordingly,
the Court developed the now-familiar Miranda warnings as a means
of reducing the compulsion attendant in custodial interrogation.
The Miranda rule requires that these warnings be given to
individuals in custody prior to the initiation of interrogation.
This rule, however, is not absolute. (11)
In Perkins, the Supreme Court recognized that there are
limitations to the rule announced in Miranda. The Court
expressly rejected the argument that "Miranda warnings are
required whenever a suspect is in custody in a technical sense
and converses with someone who happens to be a government
agent." (12) Rather, the Court concluded that not every
custodial interrogation creates the psychologically compelling
atmosphere that Miranda was designed to protect against. When
the compulsion is lacking, so is the need for Miranda warnings.
The Court in Perkins found the facts at issue to be a clear
example of a custodial interrogation that created no compulsion.
Pointing out that compulsion is "determined from the perspective
of the suspect," (13) the Court noted that Perkins had no reason
to believe that either Parisi or Charlton had any official power
over him, and therefore, he had no reason to feel any
compulsion. On the contrary, Perkins bragged about his role in
the murder in an effort to impress those he believed to be his
fellow inmates. Miranda was not designed to protect individuals
from themselves. Consequently, the Court held there was no need
to advise Perkins of his rights prior to his conversation with
Parisi and Charlton.
The controlling facts present in Perkins would most likely
exist in any case where statements are obtained by a cellmate
informant or an officer operating undercover in a prison.
Although there is custodial interrogation in the technical sense,
there is no compulsion if the suspect is unaware of the officer's
or informant's true identity or purpose. Therefore, there is no
need to advise jailed suspects of their Miranda rights prior to
using a cellmate informant. (14) There are, however, other fifth
and sixth amendment rights that can limit the use of cellmate
informants as an investigative technique.
FIFTH AMENDMENT--DUE PROCESS CLAUSE
In addition to the self-incrimination clause, the fifth
amendment to the U.S. Constitution also provides that "no person
shall be...deprived of life, liberty, or property, without the
due process of law." (15) This due process clause has been
interpreted by the Supreme Court as requiring that all
defendants in criminal prosecutions be treated with fundamental
fairness. (16) With respect to confessions, the Court has held
that to be fair, a conf