David Sweat
Can David Sweat's testimony be trusted?
01:47 - Source: CNN

Editor’s Note: Danny Cevallos is a CNN legal analyst, criminal defense attorney and partner at Cevallos & Wong, practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter: @CevallosLaw. The opinions expressed in this commentary are solely those of the author.

Story highlights

Danny Cevallos: Authorities have many questions for recaptured convict David Sweat about his escape

Cevallos asks: Can any information from him be believed?

Criminals tend to say what will help them; and though they might lie to implicate, say, prison guards, their testimony might be used, he says

CNN  — 

Now that the manhunt for two escaped prisoners in New York has been brought to a close, with one convict apprehended and the other shot dead, authorities will have plenty of questions for the survivor, David Sweat.

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In addition to the suggestions that prison guards may have been complicit in the escape, rumors are now emerging that there may have been heroin use among prisoners and an alleged drug trade involving employees.

Of course, everyone is wondering what Sweat can tell us – not just about his escape, but the extent of the potential shenanigans at Clinton Correctional Facility. He has information the government wants. The critical questions are: What is that worth to authorities? What are they willing to give Sweat for information? And, of course, how credible is anything that this convicted killer has to say about anyone else?

After all, he’s a desperate, convicted killer. If, for example, he implicates other prison employees in criminal activity, the truth of that testimony would surely be questionable. What prosecutor would rely on the exclusive testimony of such a criminal to build the government’s case?

Almost all prosecutors would, actually.

The government is hardly reluctant to enlist criminals as witnesses; they do it all the time. In fact, criminal informants are often their primary investigative tool and their star witnesses in prosecutions. For example, federal statistics suggest that more than half of drug defendants will cooperate with prosecutors in exchange for all kinds of gifts: lenience, dismissal of charges, reduced sentences, even cash payments in some instances .

The problem with this source of evidence is that inmate testimony is inherently unreliable, a fact observed repeatedly by courts. Courts have cited reputable studies supporting the conclusion that compensated prisoner informants have a “significant incentive to offer testimony against other defendants to curry favor with prosecutors and that the proffered testimony is oftentimes partially or completely fabricated.”

Simply put, criminals are likely to say almost anything to get what they want, especially when what they want is less prosecution, less time in prison and fewer restrictions while in prison.

There’s more: Not only is snitch testimony unreliable, it’s often unverifiable. If the snitch and defendant were alone during the crime or the defendant’s supposed confession, often there’s no way to really verify what happened. A clever informant need only cobble together information gleaned from news reports or friends on the outside to come up with a story, which he can offer to a district attorney as legal tender for bargaining.

Escaped N.Y. convict David Sweat has been shot and taken into custody, multiple law enforcement sources say.
David Sweat: Inmates did practice run night before escape
01:48 - Source: CNN

In closing arguments, defense attorneys often point out to the jury the deals this testifying snitch has made to save his own skin, and the fact that this crucial government witness has testified to his own criminal conduct – i.e., “You’ve heard Mr. Criminal testify against Mr. Defendant, and also about his own crimes. Would you trust Mr. Criminal with your wallet? Would you trust him to watch your children? If not, then why would you trust a word of his testimony against Mr. Defendant?”

Still, conventional wisdom is that juries ultimately trust snitches, because, after all, the prosecutor trusts this guy, and, well, surely prosecutors don’t work with liars, do they?

Do they?

Why do prosecutors use jailhouse informants if they are so unreliable? It’s hard to say. Perhaps it is as innocent as confirmation bias: The prosecutor believes in his or her case and succumbs to the unconscious temptation to marshal favorable evidence, even if it’s from a questionable source. One thing is for certain though: Prosecutors use snitches. They use them frequently. They use them successfully. They use them as the cornerstone of their case.

What about the suggestion that Sweat would not snitch on the same prison guards who helped him escape? Those who believe that are the same people who believe that had prison tailor Joyce Mitchell showed up to pick these guys up at the agreed-upon manhole, the three of them would have driven to Mexico and lived happily ever after in a blissful love triangle, surrounded by surf and margaritas.

Come on.

They would have killed her for her Toyota Tercel and dumped her before they got to Pennsylvania, let alone Juarez. Loyalty is not a virtue that is nurtured in prison. Survival is. Don’t forget, Sweat left Richard Matt behind as soon as he was slowing them down. If prosecutors dangle cable TV privileges in front of Sweat for some additional names to prosecute, Sweat is likely to toss out as many names as he can. Wouldn’t you? And you’re probably not even a criminal. Probably.

Many months from now, we may see Sweat testifying against any number of civilians, prisoners or other prison officials. If he does, the odds are he will have received some benefit for his testimony – surely he is not in the business of charity to law enforcement.

The revelation in unsealed court documents that Bill Cosby admitted to procuring quaaludes with the intent of using them for sex with women has, unsurprisingly, spurred a national dialogue about date rape and intoxication. While this latest revelation draws even greater attention to the embattled comedian’s case, it also highlights the broader challenge for states, university campuses and society as a whole: Drawing the line between consensual sex while under the influence, and the inability to consent due to intoxication.

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