How Federal Criminal Defense Lawyers Challenge Confidential Informants
How Federal Criminal Defense Lawyers Challenge Confidential Informants
The Prevalence of Confidential Informants in Federal Cases
Informants are widely used by federal agencies like the FBI, DEA, ATF, and Homeland Security in investigations into organized crime, drug trafficking, terrorism, public corruption, and more. In exchange for money, dropped charges, reduced sentences, or other benefits, informants provide tips, wear wires, make controlled buys, testify to grand juries, and otherwise assist agents and prosecutors.
Cooperating witnesses are similar – they are criminally charged suspects who agree to plead guilty and testify against others for sentencing benefits. Both informants and cooperators provide critical insider information and evidence, which is why federal investigators rely on them so heavily. However, their involvement also raises credibility issues that skilled defense lawyers work to expose.
Strategies for Challenging Confidential Informant Reliability
When informants or cooperators are involved, defense strategy focuses heavily on attacking their credibility and revealing reasons to doubt the truthfulness of their statements and testimony. Common techniques criminal defense attorneys use include:
Filing Discovery Motions
The first step is demanding full discovery about the CI or cooperator from the prosecution. This includes:
- Criminal history
- Compensation/benefits provided
- Inconsistent statements
- Mental health/substance abuse issues
- Any evidence impeaching reliability
Thoroughly reviewing this discovery helps identify vulnerabilities for cross-examination.
Investigating Backgrounds
In addition to official discovery, defense investigators dig into informants’ backgrounds searching for additional impeachment evidence about:
- Past crimes and lies
- Bias against the defendant
- Motivation to fabricate testimony
- Relationships with case agents and prosecutors
Rigorous Cross-Examination
Armed with discovery and investigation materials, defense lawyers hammer away at informants on the witness stand highlighting:
- The benefits they received in exchange for cooperation
- Inconsistencies in their statements
- Past instances of deception
- Reasons they would lie about the defendant
Pointing out credibility problems is key to neutralizing informant testimony.
Seeking Exclusion from Trial
In some cases, defense counsel may file a motion seeking total exclusion of unreliable informant testimony from trial. Grounds can include:
- Extreme unreliability violating due process
- Undue prejudice outweighing any probative value
- Privilege violations or Miranda issues during questioning
While challenging, excluding informants is sometimes the only way to ensure a fair trial.