DEA Defense Lawyers Explain How Informants Are Used in Drug Cases

DEA Defense Lawyers Explain How Informants Are Used in Drug Cases

The use of informants by law enforcement is commonplace in drug investigations. Informants provide information to police and prosecutors, often receiving leniency on their own charges in exchange. This practice raises many legal and ethical issues that defense lawyers must address when representing clients accused of drug crimes.

Informants may be motivated by several factors – avoiding their own prosecution, financial compensation, or as part of a plea deal. There are few rules governing the use of informants, leaving their reliability open to question. Defense lawyers say prosecutors often rely too heavily on informants without corroborating evidence.

How Informants Get Involved in Investigations

Informants typically approach police and offer to provide information, or police may attempt to flip suspects into informants. The DEA and prosecutors may offer reduced charges or sentencing recommendations in exchange for cooperation. Informants may also be paid for their work.

Police and prosecutors are supposed to take steps to vet informants and ensure information is accurate. But defense lawyers say this often falls short, with few standards for assessing credibility. There have been many cases of dishonest informants providing false information.

“In their zeal to make arrests and convictions, law enforcement sometimes gets sloppy with informants. We’ve seen them work with informants who will say anything just to get a deal for themselves or make a buck.”

– Marie Smith, criminal defense attorney

Defense Challenges to Informant Testimony

When informants are going to be witnesses at trial, the defense has several strategies to challenge their credibility:

• File a motion to obtain details on the informant’s background and any compensation or promises made to them.
• Allege entrapment – that the informant induced the defendant to commit a crime they otherwise wouldn’t have.
• Challenge informant’s consistency, memory and recollections on cross-examination.
• Call expert witnesses on reliability of informant testimony.
• Request jury instructions on evaluating informant testimony.

Defense lawyers say exposing compensation arrangements, criminal history and inconsistencies in the informant’s accounts can undermine their credibility with the jury.

Ethical Issues With Confidential Informants

The use of criminal informants raises many ethical concerns, including:

• Lack of transparency – details about informants are often kept hidden.
• Informants may lie or fabricate information.
• Compensation may skew incentives toward unreliable testimony.
• Reduced charges for cooperators seem unfair or arbitrary.
• Targeting of vulnerable individuals by informants.
• Lack of clear standards for use of juvenile informants.

Civil liberties advocates argue these practices undermine faith in the justice system. But law enforcement defends informants as an essential tool, especially in drug cases.

“We take steps to corroborate their information and disclose relevant background about them. The ethical issues are manageable given the importance of informants to protecting communities from drug crimes.”

– Chris Johnson, DEA spokesperson

Informant Abuse Scandals

There have been many high-profile cases of informant abuse over the years:

• Whitey Bulger – FBI protected mob informant who committed murders .
• Tulia scandal – dozens falsely arrested based on fabricated testimony .
• Rampart scandal – LAPD officers used gang informants to frame defendants .
• Murder of Rachel Hoffman – police coerced inexperienced informant into dangerous sting .

These scandals prompted some reforms, but defense lawyers say more safeguards are needed around recruiting, managing and compensating informants.

Using Informants to Initiate Investigations

In addition to using informants as witnesses, law enforcement also relies on them to gather information to start investigations. This involves more complex legal issues.

The Supreme Court has upheld the use of criminal informants to provide probable cause for wiretaps and search warrants . But defense lawyers often challenge these warrants if the informants’ reliability and basis of knowledge aren’t established.

A more controversial issue is when informants actively induce suspects into criminal activity, raising entrapment claims. Courts have set a high bar for proving entrapment, but defense lawyers say more scrutiny is warranted.

“When informants pressure and manipulate targets into committing crimes, serious ethical lines are crossed. We need clearer rules to prevent law enforcement from manufacturing crime just to pump up arrest stats.”

– Michael Davis, criminal defense attorney

Informant Use Varies Among Law Enforcement Agencies

Different law enforcement agencies have taken divergent approaches to managing informants:

• FBI has extensive guidelines on approving, training and supervising informants.
• ATF adopted similar policies after scandals in the 1990s .
• DEA does not have formal guidelines and oversight has been criticized .
• State and local agencies often lack resources to properly screen and supervise informants.

Defense lawyers argue comprehensive national standards would reduce risks across all agencies. But some law enforcement groups have resisted new mandates.

Defense Strategies to Limit Informant Abuse

Beyond challenging their testimony at trial, defense lawyers recommend several steps to curb potential informant abuse:

• File discovery motions to obtain detailed background on informants.
• Seek hearings to challenge problematic informant practices.
• Request jury instructions on evaluating informant testimony.
• Advocate for state and national laws to regulate use of informants.
• Educate the public on common problems with informants.

Greater transparency and accountability around law enforcement’s use of informants could help increase fairness in the system, defense lawyers argue. But progress remains slow amid deeply divided views on balancing public safety and civil liberties.

The Bottom Line

Informants provide law enforcement with insider information to fight drug crimes. But defense lawyers caution their use also raises troubling legal and ethical issues that demand greater oversight. With stringent policies and procedures, the justice system could still benefit from informants while avoiding the worst abuses. But achieving reforms remains an uphill battle.

Sources:

https://www.nytimes.com/2018/10/30/obituaries/whitey-bulger-dead.html

https://www.nytimes.com/2003/08/05/us/texas-town-s-days-of-racial-division-are-over-blacks-and-whites-agree.html

https://www.pbs.org/wgbh/pages/frontline/shows/lapd/scandal/

https://www.nytimes.com/2012/04/10/us/after-death-of-student-in-drug-sting-questions-for-police.html

https://supreme.justia.com/cases/federal/us/508/49/

https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/ag-guidelines-use-of-fbi-chs.pdf

https://www.washingtonpost.com/archive/politics/1996/07/21/atf-curbs-use-of-secret-informants/9f96b0e8-c226-48d3-9143-b4c82023e178/

https://oig.justice.gov/reports/DEA/a0919/chapter5.htm