Criminal Defense Lawyers

Disclosure of a Confidential Informant (“CI”)

Disclosure of a Confidential Informant (CI)

So you’re probably wondering, like, what does it mean when prosecutors have to disclose a confidential informant? And why does it matter? This stuff can get kinda complicated, but I’ll try to break it down in a simple way.

What is a CI?

A confidential informant (CI) is basically someone who gives information about criminal activity to the police or prosecutors in secret. They don’t want their identity to be known publicly because they’re usually involved in some shady stuff themselves.

CIs are often criminals who agree to snitch on other criminals in exchange for leniency or some other kind of deal with the cops. For example, a drug dealer might provide information about their supplier to avoid getting busted themselves. Or someone who got caught committing a crime might offer to inform on other people to get a reduced sentence.

So in short, they’re informants who only share information confidentially in return for something from the authorities. Their cooperation depends on their identity staying secret.

When do prosecutors have to disclose a CI?

Most of the time, prosecutors don’t have to reveal the identity of a confidential informant to the defense. They can keep it secret to protect the CI from retaliation.

But there are some exceptions where the law says they do have to disclose the CI’s identity and details about their background.

1. Brady rule

Under the Brady rule, prosecutors have to turn over any evidence that could help prove the defendant’s innocence or impeach the credibility of a government witness. And in some cases, info about a CI could fall under that.

Let’s say the CI is the main witness against the defendant, but they have a sketchy past that calls their reliability into question. If the defense doesn’t know the CI’s identity, they have no way to dig into their background and use it to undermine their testimony. So in that kind of case, the prosecution would likely have to disclose the CI’s identity and criminal history under Brady.

2. Roviaro rule

This comes from a Supreme Court case called Roviaro v. United States. Basically it says prosecutors have to reveal a CI’s identity if it’s relevant and helpful to the defense, or essential for a fair trial.

For example, if the CI was an eyewitness to the crime, the defense could argue they need to know who it is to challenge their testimony or investigate their credibility. Or if the CI actually participated in the crime, their identity could be critical for the defense to try to prove the defendant’s innocence.

So under Roviaro, the judge can order disclosure of a CI if the specifics of the case make it necessary for the defense to mount their case – even if it compromises the CI’s anonymity.

3. Classified information procedures act

There’s also something called CIPA – the Classified Information Procedures Act. This law allows the government to withhold classified information from discovery – including the identity of any undercover agents or informants.

However, the judge can still force disclosure if they think it’s required for a fair trial. So CIPA doesn’t give prosecutors absolute power to hide a CI’s identity. The defense can still convince the court to order disclosure under certain circumstances.

4. Informant as a witness

Generally, if the prosecutor plans to call the CI as an actual witness at trial, they’ll have to reveal their identity to the defense ahead of time. This allows the defense to fully investigate their background and prepare to cross-examine them.

So if the CI isn’t just providing tips but is actually testifying against the defendant, their identity will usually need to be disclosed well before trial.

How might disclosure of a CI affect a case?

Revealing a CI’s identity can really shake things up in a criminal case. Here are some potential effects:

• It compromises the CI’s safety. They could face retaliation from people they snitched on. This makes prosecutors very reluctant to disclose unless absolutely necessary.
• It undermines the CI’s credibility if they have a sketchy past. The defense can dig up dirt on them and use it to attack their testimony.
• It gives the defense leads to investigate that could support the defendant’s innocence claim. Like if the CI has a history of lying or falsely accusing people.
• It allows the defense to fully explore if the CI was coerced into cooperating. This could show their information is unreliable.
• It opens up avenues for the defense to argue the CI entrapped the defendant or directly participated in the crime. This could defeat the prosecution’s case.
• It forces early disclosure of the prosecution’s trial strategy if the CI will testify. The defense gets more time to prepare their counterarguments.
• It reveals law enforcement methods and sources. This compromises ongoing investigations and future prosecutions involving the CI.

So you can see why prosecutors strongly resist disclosing a CI unless they absolutely have no choice under the law. It can really sabotage the government’s case in lots of ways.

What procedures are used to disclose a CI?

Because of all the risks, there are usually strict procedures when prosecutors do have to disclose a CI:

• The judge may review info about the CI privately, known as in camera review. They then decide what specifically must be turned over to the defense.
• The actual identity might be replaced with a pseudonym like “CI No. 1” at first. Only if needed will their real name be revealed.
• Disclosure may be limited to the defendant’s lawyer only, not the defendant themselves. This helps protect the CI.
• The defense may have to sign a protective order agreeing not to publicly reveal the CI’s identity or details about them.
• If possible, only parts of the CI’s background related to credibility might be disclosed, instead of their whole personnel file.
• There could be a gag order preventing the defense from talking to the media about the CI’s identity.
• If the CI testifies, they may be allowed to disguise their appearance and use a pseudonym on the stand.
• Hearings related to the CI might be closed to the public to maintain secrecy.

So judges and prosecutors use a ton of precautions when disclosing a CI. They try to reveal as little as possible or anonymize information. But at the end of the day, the defendant’s constitutional right to a fair trial can still trump the CI’s interest in staying concealed.

What are some relevant cases and laws?

There’s been a lot of important court rulings that shaped how CI disclosure works today. Here are some key ones:

• Roviaro v. United States (1957) – This Supreme Court case established the main test for when CI disclosure is required. It says judges must balance the public interest in protecting informants against the defendant’s right to prepare their defense.
• McCray v. Illinois (1967) – The Supreme Court ruled the prosecution doesn’t have to reveal a CI’s identity when challenging probable cause for a warrant. Only the reliability of the CI has to be established.
• United States v. Davis (1975) – This appeals court developed a 3-part test to assess when disclosure is required under Roviaro. The defense must show the CI’s testimony is important, the CI has exculpatory evidence, and there are no other reasonable ways to get that evidence.
• Brady v. Maryland (1963) – The Supreme Court held that prosecutors must disclose any exculpatory evidence, which can include information about a CI that helps prove the defendant’s innocence.
• Classified Information Procedures Act (CIPA, 1980) – CIPA allows the government to withhold classified information, including CI identities, from discovery. But the judge can still order disclosure if it’s required for a fair trial.

So those are some of the big landmark cases that shaped CI disclosure rules. There’s been lots of back and forth on this issue over the years as courts try to balance fairness, safety and secrecy. It’s still a murky gray area of law!

What are some pros and cons of mandatory CI disclosure?

Requiring the prosecution to reveal confidential informants has some potential upsides:

Pros:

• It enhances the defendant’s right to put on a full defense and get a fair trial.
• It allows scrutiny of the CI’s background and motives so their testimony can be properly weighed.
• It discourages police and prosecutors from relying on CIs with a history of deception or misconduct.
• It prevents CIs from framing or entrapping defendants without accountability.
• It upholds the principle of openness and transparency in criminal proceedings.

However, there are also some good arguments against mandatory disclosure:

Cons:

• It endangers CIs by exposing their identity and cooperation with police.
• It undermines the ability to convince reluctant informants to cooperate.
• It chills other witnesses from coming forward if they can’t be sure of confidentiality.
• It reveals sensitive law enforcement methods and intelligence sources.
• It creates delays and complications by requiring mini-trials on CI background issues.

So in summary, mandatory disclosure promotes transparency and fairness for defendants, but it also carries risks to informant safety and law enforcement operations. There are reasonable arguments on both sides of this debate.

What should you do if you learn about a CI?

If you somehow find out that a CI gave information against you, here are some tips:

• Don’t try to expose their identity or retaliate against them – that could get you into more legal trouble!
• Talk to your lawyer about filing a motion to disclose the CI’s identity and background details.
• Your lawyer can argue the CI’s testimony is essential and you need their info to get a fair trial.
• Gather information on any deals the CI got or crimes they avoided to show their motive to lie.
• Point out any past acts of deception or perjury the CI has committed.
• Argue you need to fully investigate the CI’s version of events to prove your innocence.
• Request an in camera hearing where the judge reviews CI details privately to decide what needs to be disclosed.
• Be prepared to sign protective orders promising not to spread the CI’s identity around.
• If their identity remains secret, focus on attacking their credibility and reliability during cross-examination.

Getting a judge to order disclosure of a confidential informant is tough. But if you can show it’s truly essential for your defense, it is possible in some cases. An experienced criminal lawyer is key in navigating this tricky process.

Conclusion

So that’s a quick rundown on the disclosure of confidential informants! To recap, prosecutors usually don’t have to reveal a CI’s identity. But in some cases, the law says they must disclose it to protect the defendant’s right to present their best defense. This is still a murky area of criminal procedure though, with compelling arguments on both sides. Disclosure can be a game-changer for the defense, but also puts CIs at risk and compromises law enforcement operations. It’s a complex issue that the courts are still grappling with, so cases requiring CI disclosure always lead to a big legal battle!