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Thread: Confidential Informants

  1. #1
    curious124 is offline Junior Member
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    Confidential Informants

    What is the name of your state (only U.S. law)? Maryland

    I have a question regarding the use of confidential informants.

    Let's say the police used a confidential informant to make a drug bust. The informant was an active participant in the buy. The informant was also a former friend of the defendant.

    Well, according to research, the informant needs to be identified if he or she is a material witness to the crime and possesses testimony on the admission of guilt that exonorate the defendant. Before that, the informant is revealed to the trial judge, who performs an in camera hearing, which is a hearing in private with the prosecutor, to determine if such evidence exists. The burden is on the defense to provide evidence that the defendants testimony demonstrates exculpability to the defendant.

    How can the defendant possibly provide such evidence when these in camera meetings are held in private? Add to the fact, the informants will be acting on their own selfish desires, as they are working off their own charges, so they may not testify to the judge everything they know or show that they could help the defendant.

    Thus the motion to disclose the informants identity will be denied (only in rare cases is it revealed).

    Any ideas on how the defendant could show evidence that revealing the informants identity is crucial to his or her defense?
  2. #2
    dave33 is offline Senior Member
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    All to often a c.i. will give bad info. They often have strong motives to lie. Even if a person has no info. at all they make it up to avoid prosecution.

    Almost all the time the i.d. of the informant is needed for an effective defense. If you continue to plead not guilty the judge will have no choice but to force the state to reveal the i.d. The right to confront your accuser is still usually taken seriously in most places. If the state intends to go to trial and the person is important to the case you will eventually get vthe info. goodluck.
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  3. #3
    curious124 is offline Junior Member
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    That used to be the scenario in older cases but recently, the California supreme court ruled (Davis vs Superior Court CA 2010 1271, 1277) that the identity of the confidential informant only be revealed if he or she can provide evidence that can exonorate the defendant. The burden rests on the defense to provide "some" evidence on this matter.

    So basically, they are saying, if the police use a confidential informant as a "tool" his identity is not required to be revealed. For example, in a drug sting:

    -Informant informs police that he can setup a drug deal for the police. The police choose to use informant as a tool.

    -Prior to the controlled buy, police search informant and place an audio transmitter on him. They also obtain text messages from his phone regarding the transaction.

    -Informant meets defendant, completes transaction under police survelliance and returns to police with the drugs.

    In this scenario, prosecutor will attest that that the informer is merely a tool and the evidence is that the drugs were found on informant after his meeting with defendant - so the only place they could have come from is defendant. Therefore, the informants identity need not be revealed because he possesses no evidence that could exonorate the defendant.

    What can the defense do or present in this scenario that could claim otherwise to have the informants identity revealed?
  4. #4
    mulldoone is offline Junior Member
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    Quote Originally Posted by dave33 View Post
    All to often a c.i. will give bad info. They often have strong motives to lie. Even if a person has no info. at all they make it up to avoid prosecution.
    That is so very true. About 5 years ago, an innocent, and also elderly, lady by the name of Kathryn Johnston was killed all because the police relied on a lie that one of their CIs gave them.
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  5. #5
    Stevef is offline Senior Member
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    Quote Originally Posted by curious124 View Post
    the California supreme court ruled
    A California Supreme Court ruling has no effect on a case in Maryland. Look for Maryland cases or US Supreme Court/Appeals Court cases on point for your argument.


    -Informant meets defendant, completes transaction under police survelliance and returns to police with the drugs.

    In this scenario, prosecutor will attest that that the informer is merely a tool and the evidence is that the drugs were found on informant after his meeting with defendant - so the only place they could have come from is defendant. Therefore, the informants identity need not be revealed because he possesses no evidence that could exonorate the defendant.

    What can the defense do or present in this scenario that could claim otherwise to have the informants identity revealed?
    You would have to show that the informant witnessed something that could help exonerate you that the police did not. For example, your defense is that someone was holding you at gunpoint, forcing you to sell the drugs. The CI saw this person holding the gun, but the police did not. You want to establish that there was someone holding a gun on you, but the only witness is the CI. In that instance, a court would likely compel the testimony of the witness.

    In your example, since the police witnessed the entire transaction, there is not likely anything the CI witnessed that the police did not.
  6. #6
    CavemanLawyer is offline Senior Member
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    curious124, the example you gave is fairly rare and is the type of fact pattern that frankly makes the CI disclosure procedures moot. If the CI is used in the actual commission of the charged crime then the defendant doesn't need the identity of the CI disclosed, they already know who it is. If the government charges me with delivering a controlled substance weighing x grams on a specific date then I can pretty easily narrow it down to a small list of people that I sold to that day. There is nothing preventing me from subpoenaing those witnesses to trial and asking them about the transaction and their connection to law enforcement. Also in the example you gave, practically speaking the State is going to have a very hard time proving the offense without putting the CI on the stand. When the CI is a literal fact witness they are going to have to testify to get much of the evidence admitted. If the State gets their evidence in through a third party witness who was present, well hell, it should be pretty obvious that the other guy there that day is the CI. Again, there is just nothing to disclose because it is obvious. These types of scenarios do happen but it is usually done so with the understanding from the start that the CI is going to be used in court. This usually involves a broad investigation with either multiple defendants or multiple charges. The CI is contractually obligated with the government to testify in any of the cases and the CI is then "burned" and not used again.

    Forcing the State to disclose a CI is a procedure done when the CI was used as part of the investigation but not in the actual commission of the charged crime. Examples include the CI just tipping the police off to where a crime will happen, the CI being used to gain probable cause for a later search, or being used to introduce the suspect to an undercover agent who can make a controlled buy/sell (or whatever the crime is they are trying to catch them in) and who can testify in court. These are examples where the defense would want to have the CI disclosed either to attack probable cause for a search or to present mitigating/exculpatory evidence at trial.

    As far as how the defense establishes the need for the CI's disclosure when it is only disclosed in camera... well the defense basically just raises the unknowns in the case. If it were a search of the house based on a warrant procured through the use of a CI's probable cause, then the defense could present evidence that there were X people in the house and X nosy neighbors etc.. at the time of the search. The CI's identity is disclosed to the judge in camera and he/she can see whether any of these people were the CI and whether they were present at the time of the search. If so they might have useful information for the defense. If the CI was no where near the house when it was searched, its a no brainer and there's no reason to disclose. Basically, the procedure is very fact specific.
  7. #7
    The Occultist is offline Senior Member
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    Quote Originally Posted by dave33 View Post
    The right to confront your accuser is still usually taken seriously in most places.
    In the OP's example, the accuser is the state, not the C.I.
  8. #8
    curious124 is offline Junior Member
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    Let me clarify the case:

    -The police use the CI in a controlled drug buy. He is outfitted with audio transmitters.

    -The CI completes the controlled buy and returns the drugs to the police.

    -The police themselves do not witness the transaction. All they have are some audio recordings and text messages between defendant and CI.

    So the states evidence is that the CI was searched prior to the drug buy and after meeting with the defendant, he had drugs in his possession.

    The reason for disclosure of the CI? Often times the defendant will know who the CI is but if he discloses it publicly, there could be severe legal reprecussions for defendant. Submitting a motion for disclosure requires the prosecutor to make the CI's name and address a public record. This will break confidentiality, is of huge moral and ethical concern, and will cause the public to lose trust in law enforcement.

    So when a prosecutor is ordered by the judge to disclose the CI's identity, the prosecutor will dismiss the charges.

    See: [url=http://www.avvo.com/legal-guides/ugc/how-to-out-a-snitch?ref=result_1_title]How to Out a Snitch - Avvo.com[/url]

    Back to the original point in the above scenario. If the CI is a participant in the alleged offense above, does the state need to disclose the CI's identity or does the defendant still have no use for disclosure as a material witness?
  9. #9
    CavemanLawyer is offline Senior Member
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    In the scenario you listed it would be impossible to prosecute without putting the CI on the stand. The audio recording cannot be authenticated, its contents would be hearsay as to what the CI says, and it would violate the confrontation clause. The only other way to explain what happened is through the CI's testimony.

    As I stated, when the CI is used in the commission of the charged offense they are generally going to have to testify so disclosure is moot and if they are going to testify then it will become public record when they are listed on a witness list or when they testify in open court. I have never heard of "outing" a CI publicly to try to attack the credibility of law enforcement. That doesn't make any sense to me because the use of CI's is accepted as necessary and ethical. But in the scenario you listed, yes I would expect the trial court to disclose the identity of the CI to the Defendant.

    Sometimes the police make mistakes and allow the CI to be present at the arrest/search or otherwise gain some important information very relevant to the case and yes sometimes the DA's office is pressured to dismiss the case rather than burn the CI. It is entirely fact specific but what I am saying is that the example you give is pretty clearly one where the police have to know going into it that the CI is going to testify. In that case the informant is only confidential during the investigation, not during prosecution and the case is not going to be dismissed to protect the CI's identity because if the CI needed to be used in future investigations, the police never would have used them in that way in the first place, (ex: make them a witness.)
  10. #10
    curious124 is offline Junior Member
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    However, in those scenarios states still do not require disclosure. Here are some excerpts:

    WHEN A CI IS “MATERIAL”
    "A CI will be deemed a material witness if there is a reasonable possibility he could provide evidence that would prove the defendant was not guilty. An informant is a material witness if there appears, from the evidence, a reasonable possibility that he or she could give evidence on the issue of guilt
    that might exonerate the defendant. A defendant who files an MDI has the burden of presenting “some evidence” that the CI is a material witness."

    "It is usually possible to prove a CI is not a material witness by
    having him testify at a closed in camera hearing and explain to the judge exactly what he saw or a heard. A judge will then make a determination if the CI's testimony possesses evidence of exculpability towards the defendant."

    Examples where disclosure of the CI's identity is not required:

    "Since Harvey’s informant was an informer-witness, the first question is whether his testimony appears material to the defense. It does not. The state’s evidence indisputably showed that crack cocaine was found in the informant’s vehicle after Harvey was there. The only testimony materially beneficial to Harvey would have been an admission by the informant that the cocaine was his and did not come from Harvey. What had transpired beforehand and common sense exclude any realistic possibility that the informant would be compelled to so testify. Disclosure of the confidential informant’s identity was not required. As a result, an in-camera hearing was unnecessary. Harvey v. State, 232 Ga. App. 21, 23 (1998) (footnote omitted)."

    So law says that disclosure is only required if the defense can prove the CI is a material witness that can provide evidence on the defendant's innocence.. but doesn't that law violate due process? Informant's generally are not credible and it is highly difficult to prove an informant is a material witness.

    The above is a case where the informant was an active participant in the crime, even though officers did not witness the crime in action, the circumstantial evidence lead to charges being brought and the informant's identity was not ordered to be disclosed.

    "Davis vs Superior court of CA 2010:

    Six days after Ochoa was shot, a confidential informant told the police he saw Davis shoot Ochoa. The informant gave specific details about the shooting. He or she said that Davis's mo****r was "`Hit Man'" and that Davis was from "`Bay.'" The informant took officers to Davis's home and pointed him out, at which time Davis was arrested. Davis contends that because the confidential informant was also a percipient witness to the crime, disclosure of his or her identity was mandatory. We disagree. Under Evidence Code section 1041, subdivision (a), a public entity has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a law. The prosecution, however, "must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant. An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant," on which issue the defendant has the burden of producing "some" evidence.

    These authorities do not support Davis's argument that disclosure is mandatory where, as here, the confidential informant is a percipient witness. Rather, disclosure occurs only if the defendant makes an adequate showing that the informant can give exculpatory evidence. What is known here is merely that the confidential informant claimed to have seen Davis shoot Ochoa and led the police to Davis's home. The defense is mistaken identity, and there is a dispute whether the shooter had a tattooed neck. Whether the confidential informant can give any evidence on mistaken identity and Davis's guilt that might exonerate him has not been established. Davis thus may be entitled to the opportunity to make such a showing at an in camera hearing, but he is not, at this stage in the proceedings, entitled to automatic disclosure. Rather, the balance between the public interest in protecting the flow of information to law enforcement officers and Davis's right to prepare his defense is struck by having an in camera hearing prior to any disclosure."

    Any other ideas?
    Last edited by curious124; 08-21-2011 at 04:59 PM.
  11. #11
    CavemanLawyer is offline Senior Member
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    I don't know what you mean asking if there are any other ideas. This is a fact specific and jurisdiction specific question. You state you are located in one State and then cite caselaw from two different jurisdictions. Each state is going to have their own statute dealing with how and under what circumstances a CI has to be disclosed. The way in which you show the CI is material is going to depend on the facts of the case and, like I said, the materiality and necessity of the witnesses' identity is the type of thing that may or may not be obvious once the Judge knows who the CI is. These statutes balance the interests of law enforcement, the informant, the public and the defendant so the judge has quite a bit of discretion.

    As for any of this violating due process, I wouldn't be surprised if some State's had their laws challenged for constitutionality and had to tweak the statute to be deemed constitutionally sufficient. But due process does not guarantee the right to every bit of information that the state has. Whether due process requires disclosure under the statue is going to be decided on a case by case basis and every state is different.

    I do not agree that CI's generally are not considered reliable. Proper policework entails using a CI long enough to establish their reliability before using them to make arrests. Proper policework also entails crafting scenarios where the CI is forced to be reliable. (ex: search them before sending them into the house to buy crack. If they go in clean and come out with crack, they got it from the house.) Its really not difficult to force a CI to be reliable. If they know there are police watching and/or recording them and their expected actions are predetermined, they are just a tool to do what a police officer would otherwise be doing.

    I pulled and read the complete Harvey case you cited. This example is exactly the one I was talking about where it is obvious who the CI is, but they wanted the identity disclosed anyway. There is nothing in the case that gives this detail, but I have to assume they just didn't know the true name of this individual to get them served with a subpoena. I can now see how there could be a distinction between knowing who the CI is versus knowing their name, but in this case there was also an undercover police officer present at the scene of the transaction who testified so that is how they presented their case. If this same fact pattern were raised in another state I bet the CI's identity might have to be disclosed.... it is going to vary drastically from one jurisdiction to another.

    If you really want an answer then you need to tell us what specific state this fact pattern is taking place in so it can be scrutinized under that state's law. If this is just a general hypo... then the answer will always be: it depends.
  12. #12
    curious124 is offline Junior Member
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    Here is another case, taken from [url=http://caselaw.findlaw.com/oh-court-of-appeals/1478340.html]No.?08 JE 4. - STATE v. KELLEY - OH Court of Appeals[/url]

    "{ 10} Second, even if there was a request for the disclosure prior to trial, the confidential informant's testimony was not vital to establishing the elements of the offense.   Thus, the trial court would not have erred in overruling that motion.   We concur with the reasoning of the First Appellate District, which held that when a controlled buy is witnessed in its entirety by the police and taped by another police officer, the testimony of the informant is not vital to establishing the elements of the crime.  State v. Thrasher (Nov. 1, 1995), 1st Dist. No. C-950064, 1995 WL 653842.   Admittedly, here we do not have a situation where the police watched the transaction transpire.   But, the police did search the confidential informant prior to the controlled buy, wired the informant, followed him to the controlled buy, watched him enter Kelley's house, listened to the buy as it happened, watched him exit the house, and met him at a predetermined location where he was searched and the purchased drugs were turned over to the police.   Given those facts, there is no valid reason to distinguish the aforementioned holding in Thrasher based upon the facts presented in this case."
  13. #13
    texasnsb is offline Junior Member
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    sounds like that's what happened to me. I never knew the true identity until years later. To me ,that's fraud.
  14. #14
    Zigner is offline Senior Member
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    This thread is nearly 2-1/2 years old. Please don't necropost.
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