NJ Disclosure of a Confidential Informant (“CI”)

Disclosure of Confidential Informants in NJ

Confidential informants often provide tips and information to police about criminal activity. But what happens when disclosure of a confidential informant, or “CI,” is sought by the defense in a criminal case in New Jersey?

This article examines the legal standards governing CI disclosure in NJ, when it may be required, and how prosecutors and defense lawyers litigate this issue. Understanding the law around confidential informants can be critical for defendants facing charges.

Balancing Interests Around CI Disclosure

The issue of disclosing a CI’s identity involves balancing important competing interests[1]:

• Defendants have a right to information that could aid their defense.
• Police want to protect the identity of informants who could face reprisals.
• Prosecutors want to protect ongoing investigations using the CI.

Given these concerns, courts analyze requests for CI disclosure on a case-by-case basis weighing various factors.

New Jersey Law on CI Disclosure

The leading case governing CI disclosure in NJ is State v. Milligan. Milligan established that courts must balance these factors[2]:

• The extent of the CI’s role in the alleged crime.
• The directness of the relationship between the defendant’s request and the CI’s information.
• The government’s interest in nondisclosure.
• Other available evidence corroborating the CI’s information.

If this balancing test favors disclosure, prosecutors must reveal the CI’s identity or potentially see charges dismissed.

When CI Disclosure is Required

Situations where courts may compel disclosure include[3]:

• The CI was an eyewitness or active participant in the crime.
• The CI is the sole witness establishing probable cause for a search.
• The CI’s testimony appears relevant and essential to the case.
• The defense raises entrapment and the CI was involved.

In these scenarios, the CI’s identity and role are crucial to the defense case.

When CI Disclosure Can Be Denied

Disclosure may be denied when[4]:

• The CI only provided background information to police.
• The CI’s role was limited to arranging a drug deal but did not participate.
• Other evidence strongly establishes guilt regardless of CI.
• Keeping the CI confidential is essential to an ongoing investigation.

If the CI is peripheral or duplicative, nondisclosure protects important interests.

Prosecution Strategies Against Disclosure

Prosecutors have strategies to avoid being compelled to disclose a CI, such as[5]:

• Limiting the CI’s role to tips and background information.
• Corroborating the CI’s information through independent evidence.
• Arguing disclosure would jeopardize larger investigations.
• Making plea offers to resolve the case and avoid litigation over CI disclosure.

Convictions can still be obtained without reliance on the CI as a witness if handled strategically.

Defense Strategies to Obtain Disclosure

Defense attorneys argue for disclosure by[6]:

• Filing a motion asserting the Milligan balancing factors favor disclosure.
• Highlighting gaps where the CI’s knowledge is essential.
• Raising credibility questions about the CI’s background.
• Claiming the CI entrapped the defendant into committing the crime.

The more the defense can show the CI’s identity is necessary, the better chance of compelling disclosure.

Disclosing the CI’s Identity

If ordered to disclose a CI, prosecutors must:

• Provide the defense with the CI’s name, address, and background information.
• Make the CI available for defense interviews and potential testimony.
• Disclose any compensation, promises, or inducements made to the CI.
• Reveal the CI’s criminal history and any other impeachment evidence.

Full disclosure allows the defense to properly assess the CI’s credibility and role.

Tactical Considerations Around CI Disclosure

Both prosecutors and defense counsel must strategically litigate CI disclosure issues with cases in mind. Tactical considerations include:

• The stage of the case – pre-indictment disclosure motions may have more impact.
• Strength of other available evidence.
• Benefits of delaying litigation until after evidentiary hearings.
• Whether disclosure could lead to favorable plea negotiations.

An experienced criminal attorney will advise on the best timing and arguments regarding seeking CI disclosure.

Disclosing Informant Identities Pre-Trial

Seeking disclosure pre-trial is recommended so the defense can:

• Investigate the CI’s background, bias, and credibility.
• Determine if the CI has exculpatory evidence.
• Assess if the CI improperly entrapped the defendant.
• Explore if CI testimony could impeach other government witnesses.

Early disclosure gives more time to incorporate arguments around the CI into the overall defense strategy.

Disclosing CIs Who Won’t Testify

Even if the prosecution doesn’t intend to call the CI as a witness, disclosure may still be compelled if:

• The CI is the sole source of probable cause for a search.
• The CI provided information used to obtain a wiretap.
• The CI has exculpatory evidence or information.
• The CI’s identity is relevant to an entrapment defense.

The CI’s role in the investigation itself could make disclosure necessary, even if not testifying.

Subpoenaing Confidential Informants

Another option is having your lawyer subpoena the CI as a defense witness at trial. This may be worthwhile if:

• The prosecution’s case hinges on uncorroborated CI information.
• The CI has information that contradicts the prosecution’s theory.
• The CI has a background or history that could undermine their credibility.

Skilled cross-examination of a CI can be very effective in raising reasonable doubt.

Consult an Attorney if a CI is Involved

If you are facing criminal charges based on an unnamed CI’s information or testimony, immediately consult with a defense lawyer. An experienced attorney can advise if pursuing disclosure under Milligan may aid your defense.

Fighting CI disclosure battles requires criminal litigation expertise. A knowledgeable lawyer can aggressively leverage Milligan and craft compelling arguments tailored to your case’s unique facts.