In State v. Lewis 2010 WI App 52, District II of the Wisconsin Court of Appeals faced the issue of a jail house informant providing information to the state in return for leniency about supposed inculpatory statements made by his cellmate while awaiting trial. Obviously, the cellmate (defendant Lewis) was represented by counsel during the time period that the conversations supposedly took place. In rejecting Lewis's Massiah (see Massiah v. United States, 377 U.S. 201 (1964)) claim (jailhouse inmate was acting at the direction of the state to elicit the statements circumventing his right to counsel); Judge Brown thoroughly analyzed the multifactor test for Massiah violations set forth in United States v. Henry, 447 U.S. 264 (1980). He found that 1) Lewis was in custody and 2) the informant was a fellow cellmate. However, as to the third factor, he concluded that the informant was not under the direction or control of the state and that the informant did not receive direction from the state. An informant's hope to receive a benefit does not create an implicit agreement that is a predicate for a Massiah violation. (see paragraph 23).
This decision does not mention nor make any reference to a study completed by the ABA Criminal Justice section discussing the problems of jailhouse informants and the frequency of wrongful convictions as a result of such testimony. An entire chapter is dedicated to jailhouse informants and the problems they present in the report entitled: Achieving Justice: Freeing the Innocent , Convicting the Guilty.
In other words what I am suggesting is that practical considerations and the reality surrounding the misuse of jailhouse informant testimony calls for a revisit to the parameters set forth in Henry with the goal of making the use of this type of testimony more difficult unless reliability is determined in advance in a Daubert type setting. The next time trial counsel faces the use of jailhouse snitch testimony...perhaps some use can be made of the social cost of wrongful convictions as justification to modify the Henry parameters