A few weeks ago, I posted a blog piece about understanding betrayal when preparing for trial in a case involving snitch testimony. Today, I want to address our - defense attorney’s - attitudes when cross-examining the snitch, and when preparing the client for this part of the trial. Bottom line: Forgive them, they know not what they do.

Clarifications About the First Piece on Betrayal and Snitches:

I hope that one thing in the last piece was clear: Snitches are not necessarily hateful, nor are they necessarily bullies, nor are they bad people. They’re human, nothing more, nothing less. Snitches can be anyone, including good, hardworking, productive people. Snitching is a social, not individual, phenomenon. I’ll address why it is important to keep the humanity of the snitch in the forefront of our minds a little later.

But – Millie – you used the word “betray” in your last piece. “Bad people” betray their friends and family, right?

No. Everyone has betrayed a friend or family member, in some way, at some time. Small betrayals may be as simple and mundane as saying something unkind about a friend to a third party, or repeating our friend’s words to a third party that does not have our friend’s best interests at heart.

Dear Reader, let us be honest with each other: We have either done that ourselves, or we have tolerated it when another has gossiped in our presence. Gossip is a small betrayal, and precious few of us are above it. Forgiving ourselves for our trespasses against others is a good first start to break our habit of gossiping, but to forgive ourselves, we first must acknowledge that we have sinned in that way.

So – no, snitches are not necessarily bad people. Gossip is a bad habit, but those who gossip are capable of changing their behavior and being better. Circumstances are important. A person might not say something unkind about their friend to a complete stranger, but may say it to a boss at work with whom they are trying to ingratiate themselves.

Further, betrayal is relative. For example, a recipient’s failure to respond to a text message or phone call may not register on the texter/caller’s radar as being a thing, let alone a negative thing rising to the level of betrayal. For someone that was abandoned by their parent as a child, though, the ignored call or text may feel like an enormous betrayal if they have not worked through their abandonment issues.

Law enforcement understands these gradients of betrayal, starting with gossip, when working on snitches and potential snitches, and so we must understand the thought processes as practitioners.

The Slippery Slope of Betrayal:

Small betrayals pave the way for larger ones. For snitches that are close friends or family members of our clients, law enforcement may have persuaded them that the small betrayal was morally righteous by telling the snitch negative things about our client, which may or may not be true. Law enforcement is legally permitted to mislead people during their investigations. Persuading the potential snitch that our client is “bad” in some way triggers small betrayals, in conjunction with the snitch’s natural inclination to submit to an authority figure. Once there is a small betrayal, snitches are lubed-up to slide down a slippery slope into much greater acts of betrayal – the kinds of actions that we want to associate with “bad people.” For example, the snitch who betrayed Black Panther Fred Hampton to Hampton’s death killed himself when the depth of his betrayal was about to become public knowledge.

Trial tactic tip: The jury should hear about anything that motivates the witness to testify falsely. If law enforcement tainted the snitch witness early with false information about their target, the jury needs to hear about that. In a murder trial I helped with, I talked to the jury after. Most of them were surprised to hear that law enforcement was legally allowed to mislead the client with false statements to encourage him to confess. Juries want to hear this type of information – don’t deprive them of it.

Politicking, Across Species:

When law enforcement inserts themselves between a potential snitch and their target – straining or cutting family or friendship ties in the process, they are employing a strategy that is as old as time and applies across species. Fundamentally, it is politicking.

Zoologist Konrad Lorenz coined the term “mobbing” to describe his observations of bird behavior. Since Lorenz’s work, others have applied the same principles to human aggression in group settings. (The following studies on animals are discussed in depth in Dr. Janice Harper’s book ‘Mobbed,’ cited below).

With birds, if a lone or unfamiliar bird tries to join a new flock, the other birds will join in to attack the newcomer – pecking and swooping down at it. The longer the attack goes on, the more birds will join the attack. Poultry farmers will recognize this type of behavior, as chickens have a pecking order and the most vulnerable chicken in the flock will be pecked and subjugated and prevented from eating first, and the bullying will be instigated by an alpha – a rooster.

Primatologists have identified the same type of politicking behavior in rhesus monkeys. Consider Dario Maestripieri’s book Macachiavellian Intelligence: How Rhesus Macaques and Humans Have Conquered the World. Maestripieri discusses how when one victim macaque was attacked by a bully, the victim’s friends (the other monkeys that usually had sociable interactions with the victim) joined the bully in attacking the victim.

“Buddy [the victim macaque] has spent every day of his life in the enclosure with all the other monkeys. They all eat the same food and sleep under the same roof. … They were there when he was born. They held him and cuddled him when he was an infant. They have watched him grow, day by day, every day of his life. Yet, that day, if the researchers had not taken Buddy out of the group, he would have been killed [by his friends].” (Maestripieri, 2007:4,5).

The weakest macaques are the first to join in the attack, specifically the lowest ranking females “because they finally have somebody they can dominate and finally get the chance to express all of their aggression and frustration they have repressed in a life spent at the bottom of the hierarchy.” (Maestripieri, 2007:87).

Wolves will also single out weakened members of their pack for prolonged harassment. The initial attack by the pack is almost always instigated by the pack’s alpha wolf. See R.D. Lawrence’s In Praise of Wolves (1986).

“For solitary species (e.g. the mouse), aggression is a solution to the problem of keeping others away. But for highly social species like primates (including humans), aggression is one solution to the challenges of group living. For these species, aggression is a tool that group members can use to define complex social relationships […].” (Niehoff, 1998:56).

Now, for Humans, Politicking & Creating Snitches:

Those with power in our society are the alphas. Those with the power to strip people of their freedom, or kill, are indisputably alphas. We certainly live in a complex society with a complex social order. When a member of law enforcement, with handcuffs and a gun on their belt, describes someone as a “criminal,” or as a “felon,” they start the process of locking our clients into a plummeting societal elevator that crashes into the very bottom of our pecking order, with few below them.

Psychologists have studied how this plays out among humans. Philip Zimbardo designed and executed the Stanford Prison Experiments. People were randomly assigned to be either a guard or a prisoner. Perfectly normal people that were randomly assigned to play the role of guard not only became increasingly aggressive, but were arbitrary in doling out punishment, and exhibited pleasure in humiliating those randomly assigned to be prisoners.

The “guards” also began to rationalize their aggression and sadism as being deserved by the “prisoners,” who in reality outside of the experiment were no different from the “guards”. And, after the experiment, the “guards” expressed no remorse for their behavior.

In turn, the perfectly normal people randomly assigned to be prisoners became enraged, confused, and ultimately defeated.

Stanley Milgram in 1963 carried out psychological experiments to determine whether Americans were as likely to be “Good Nazis” when an authority figure instructed them to electrocute their fellow human beings. Almost all of the test subjects were willing to impose an electro-shock of sufficient wattage that it could kill a person (had someone actually been receiving the shocks). Most of the normal Americans in that study, who were willing to electrocute other people to the point of inflicting serious injury or death in what they knew was just a psychology experiment, expressed little remorse after-the-fact. (All of these examples are discussed at length in Janice Harper’s ‘Mobbed.’).

Psychological Foundations of Snitching:

When talking to a potential snitch, law enforcement instinctively puppets the snitch’s traits and behaviors fundamental to the human psyche and have also been documented in other social species. These traits and behaviors include 1) submission to authority, 2) an unlimited ability to justify actions that don’t comport with being a trustworthy person, and 3) erring on the side of pleasure and avoiding pain.

1) Submission to Authority:

By merely approaching the potential snitch about their target, law enforcement very basically, very fundamentally, signals to the potential snitch that the target/client has run afoul of the alphas in our society. Approaching the friend or family member alone transmits this signal. Most people want to go along to get along. They want to be left alone to live their lives, work, play, and raise their families. They want to get ahead in their careers and be proud of themselves.

Learning that someone close to them has run afoul of law enforcement necessarily triggers their fears that they may be next if they help the target. Merely contacting a potential snitch triggers the pleasure-pain principle. “If I help law enforcement, I appease the alpha, which can be beneficial for me. If I decline to help, the alpha might punish me, and I’ve seen how bad that can get. I better do what the alpha says.”

People’s political views, religious affiliations, and stated value systems have no effect on how they will behave when an alpha starts politicking with them. “No matter what their politics or principles, religion or beliefs, they will act against” another person if they believe the alpha’s problem will become their own problem. Mobbed (J. Harper 2013:35).

Pressure from law enforcement alone can provide sufficient motivation for the snitch to lie about our clients when the snitch is a particularly vulnerable person. Jurors need to hear about how much pressure was placed on the snitch to start snitching. Jury selection may be a good time to start a discussion about submission to authority and the pleasure/pain principle.

2) We Are All Good & Moral People, Right?

We all want to believe that we are good and moral people. There’s a demonstrated and proven psychological phenomenon called the “self-enhancement” effect. When rating ourselves over our fellow humans, we all think we’re more/better, in every way.

Beyond these positive attributes, to an even greater degree, we all think that we are more moral and trustworthy than our fellow humans. Sure, there are Lannisters, who don’t concern themselves with the opinion of sheep, and worry not at all about relative morality. For them, might makes right. Most of us, though, believe we are morally superior to our peers, and we care about that valuation. We want other people to agree that we are moral people.

Cognitive dissonance is the phenomenon whereby we become uncomfortable when the facts don’t match our ideals/beliefs/values. Humans innately resolve that discomfort with after-the-fact justifications. Thus – the Good Nazi defense.

The internal process goes like this:

—> I am a good person —> I was just pressured by an alpha to hurt my fellow human being —> This doesn’t jive because good people don’t hurt their friends and family —> Well, I did it because I had to because that former friend asked for it, or is a criminal, or doesn’t deserve to be treated well because she did this negative thing to me that one time, or --- Insert whatever reason that will allow the person to again feel good about themselves, having done something questionable.

I urge fellow practitioners to leave behind these value judgments of good/bad/moral/immoral when preparing for trial. The people involved in our cases – witnesses, clients, jurors, lawyers, and judges – are human. They betray some. They lift up others. They are kind under certain circumstances. They are cruel under others. The circumstances play a greater role in determining the behavior than the individual’s traits or beliefs.

The State will point their finger, stomp their feet, and pound their pulpit.

Be the calm in that storm. Be objective. Acknowledge the humanity of the State’s witness that knew your client since he was a child and told law enforcement all his darkest secrets. But give the jury all the evidence showing the snitch’s motivations to betray your client and motivations to lie on the witness stand.

If you did a good job in jury selection, you have people in the box that want to believe they are moral, just, and fair. Give them the facts upon which to base a moral, just, and fair verdict.

3) Pleasure/Pain Principle & The High of Dominance:

As the Stanford Prison Experiments and Stanley’s Milgram’s experiments show, normal people will not only jump on the alpha’s bandwagon to hurt other people, but they’ll also get some jollies doing it.

Remember the female macaques, who “finally [had] somebody they [could] dominate and finally [got] the chance to express all of their aggression and frustration they have repressed in a life spent at the bottom of the hierarchy.” (Maestripieri, 2007:87).

Any criminal law practitioner knows how good it feels to utterly dominate an adverse witness on the stand, turning their testimony into good points for their client’s side. Dominating others feels good. It especially feels good for those who dwell in the bottom strata of our society, who are bullied by store-owners, the police, and sometimes their own families. The feeling of having power over another can be likened to a drug-induced high.

As the mere contact by law enforcement can trigger the person into becoming a snitch for fear of retaliation or fear of being a target of their own hellish investigation, there is a pleasure in siding with the alpha and hurting someone they know and maybe even love. Carrots and sticks, colleagues, carrots and sticks.

Final Thought on How This Applies to the Snitch:

There are monetary perks to being a snitch. Sometimes they get a new car. Black Panther Fred Hampton’s snitch got a start in a new business and avoided prison. There are psychological perks to being a snitch. Ganging up on someone and being part of the powerful group feels good. Lawyers should know all motivations for snitching to prepare for cross-examination.

The Client’s Psychology Matters, Too:

Your client will not want to believe that so-and-so betrayed him. Cognitive dissonance will set in for the client, too.

“I’ve known so-and-so forever. We love each other like brothers. He hugged my neck the last time I saw him. He couldn’t have betrayed me…”

When reality sets in, the client will refuse to believe that he and the snitch were ever close and will question all their prior interactions, long before the snitching. This is the bargaining phase of grief.

Grieving the loss of friendship or familial relationship hurts. The process is not really different from the death of a family member. Denial, negotiation, and anger are stages of grief.

Ever tried a case where your client faced life in prison and your client vomited into a court trashcan before jury selection? Help your client go through the grieving process before trial, counseling forgiveness and explaining all of our humanity to him. Don’t ignore the client’s feelings before trial. Your client is not going to be at his best during trial. He’s going to be an emotional wreck in the middle of the fight-or-flight response. The truth is, it is possible law enforcement lied to the snitch about your client. If appropriate to the case, you may point out to the client that the betrayal may have been procured by fraud. It may help the client process their grief.

On top of the fight-or-flight response, you don’t want the client stewing in the anger phase of grief, staring daggers at the snitch on the witness stand in front of the jury. No matter how innocent the client, jurors may interpret obvious rage as a sign of guilt and dangerousness. Keep in mind the fight-or-flight response in stressful situations (like trial), cognitive dissonance, and the excruciating pain of betrayal when you’re preparing your client for trial.

Hopefully, your client can forgive the snitch and compartmentalize the love he used to have for the snitch before you have a jury in the box.

Finally, colleagues, defense work is hard. It is made hard by human beings that know not what they do. Forgive them all.