Special thanks to Sheridan King, Summer Law Fellow at UNC SOG, for her significant contributions to the research and development of this post.
The previous post of this multi-part series on confidential informants (“CI’s”) delved into possible approaches to handling video and audio recordings of confidential informant activity (Parts I and II can be found here and here). CI activity is often recorded during the “main event” (the incident for which the defendant is indicted) and during “lead-up buys” (controlled purchases that create probable cause to search a location). Though trial courts throughout North Carolina regularly determine when CI recordings must be turned over to the defense, there is a scarcity of North Carolina appellate law on the subject. Thus, this post will look to other jurisdictions, including federal district courts and other states, to survey how judges are reckoning with these emerging issues pertaining to discovery, the defendant’s constitutional right to a fair trial, and the State’s interest in protecting the identity of informants.
Although criminal discovery laws in these other jurisdictions differ from those in North Carolina and the cases discussed below do not have precedential value, the reasoning is still helpful as the fundamental tensions and questions are the same.
United States v. Loden (E.D. Tenn.): a blend of main event and lead-up activity
U.S. v. Loden, a federal district court opinion out of Tennessee, is a good place to start. See U.S. v. Loden, No. 1:18-cr-00016-HSM-SKL-2, 2018 WL 6308725 (E.D. Tenn. Dec. 3, 2018). In Loden, the question was whether audio recordings of a series of controlled buys should be turned over to the defense. The audio recordings did not neatly fall into the categories of either “main event” or “lead-up buys.” On the one hand, they seemed like main event activity since the dates of the buys occurred during the date range set out in the indictment for conspiracy to distribute methamphetamine. On the other hand, they seemed like lead-up buys, since the activity culminated in a search warrant for the defendant’s residence and the defendant was not directly charged for selling to the CI. Thus, the district court judge concluded that the role of the CI was somewhere between a mere tipster and an active participant (remember that under U.S. v. Roviaro, 353 U.S. 53 (1957), the CI’s identity must generally be disclosed when the CI is a direct participant in the indicted activity rather than a “mere tipster”).
The Loden court situated the facts between two other cases, U.S. v. Parks, No. 1:08-CR-58, 2009 WL 1617010 (E.D. Tenn. June 9, 2009), and U.S. v. Pesaturo, 519 F. Supp. 2d 177 (D. Mass. 2007). In Parks, the CI was recorded making a controlled purchase of crack cocaine from the defendant. An arrest warrant was issued, and the defendant was ultimately charged with the drugs and gun found upon execution of the warrant. Thus, Parks involved a classic lead-up buy, as the CI activity could neatly be cabined off from the incident for which the defendant was being tried. The Parks court concluded that the audio recordings need not be disclosed.
In contrast, in Pesaturo, the defendant was directly charged with distribution offenses involving sales of oxycodone to the informant. The defendant invoked a defense of entrapment and clearly articulated how the substance of the conversation captured on the audio recording could bolster his claim that he was entrapped. Because the recording involved a “main event,” and the defense showed how the information was material to his defense, the defendant prevailed in obtaining the CI’s identity and the recorded conversations.
Although the Loden court acknowledged that the case at hand differed from Parks in that the CI activity could not be so neatly separated from the activity at issue at trial, the court still found the facts much closer to Parks than Pesaturo. Crucial to this determination was the government’s representation that it did not plan to introduce the recordings at trial nor call the CI as a witness (in a footnote, the Loden court implied the analysis would likely be different if the government attempted to introduce evidence relating to the CI’s involvement). The district court judge then considered whether the defense had demonstrated how the recordings were material to his theory of defense. Much as we saw in State v. Dark, 204 N.C. App. 591 (2010), the court was not satisfied with “conclusory arguments concerning materiality,” but demanded that the defendant specifically explain how the contents of the audio recording could further his defense. The defendant was attempting to argue that the conspiracy ended sooner than the government alleged, but he was unsuccessful in demonstrating how the CI’s potential testimony or audio recordings of the buys might support his defense theory. The court concluded the defense had not met its burden and sided with the government in allowing the recordings and the CI’s identity to be withheld.
From a strategic perspective, it is worth highlighting that the defense may sometimes benefit from filing a motion to reveal the CI’s identity, even without winning the motion. The government may agree not to introduce potentially damning evidence pertaining to the CI’s involvement in order to avoid having to reveal the CI’s identity, as appears to have occurred in Loden. The State’s case may be weakened, and consequently, plea negotiations could be affected.
Beville v. State (Indiana): an attempt to limit disclosure of video to defense counsel only
In another relatively recent opinion, the Indiana Supreme Court addressed issues pertaining to video recording of CI activity. The case is especially interesting in that it is a rare example of an appellate court engaging with some of the nuances of discovery management set forth in the previous post in this series. In Beville v. State, 71 N.E.3d 13 (2017), the defendant was accused of dealing marijuana and maintaining a nuisance. The CI was directly involved in the indicted conduct, as he was the purchaser of the marijuana. The State showed the defense counsel footage of the “main event” transaction but attempted to prevent the attorney from showing the video to his client in order to protect the CI. The Indiana Supreme Court noted that this was a bit strange since it seemed that the State intended to introduce the video at trial, meaning that the entire courtroom would ultimately view it. Nonetheless, the State argued that allowing the defendant to view the video ahead of trial would reveal the CI’s identity and make the CI a “target for reprisal.”
The Indiana Supreme Court sided with the defendant. The reviewing court found it problematic that the trial court did not review the video in camera to determine whether the video would actually reveal the CI’s identity as the State argued. The defense maintained that the camera angle was focused on the defendant and it was unclear whether the CI’s identity would be revealed by allowing the defendant to view it. Practitioners can draw a lesson from the case that in camera review by the trial court is often advised to ensure that the court makes the most informed decision possible.
The Indiana Supreme Court went further, though, noting that even if the identity would be revealed, the defendant had carried his burden of demonstrating that the video would be helpful. The court invoked the Roviaro dichotomy and emphasized that the CI was directly involved in the transaction. The court described it as “axiomatic” that the video would show details that the defendant needed to review. The court stressed that the defendant was charged with maintaining a nuisance in addition to dealing, and thus all the background details shown on the video portraying dominion over the premises, physical layout, and general behavior could be helpful and relevant to the defense. The court concluded it was not enough just to show the video to the attorney, since the defendant was in the “best position” to understand the context of all that was potentially depicted. The court also stressed that the State offered only generalities rather than case-specific arguments for why the video should not be divulged. The Beville case offers an example of the potential pitfalls of limiting disclosure to only the defense attorney rather than the defendant.
State v. Williams (Florida) and U.S. v. DeAraujo (D. Mass.): can turning over video substitute for revealing the CI’s identity?
Finally, the cases of State v. Williams, No. 3D23-208, 2023 WL 5732440 (Fla. Dist. Ct. App. Sep. 6, 2023), and U.S. v. DeAraujo, 471 F. Supp. 3d 382 (D. Mass. 2020), serve as examples of the dilemma introduced in the previous post in this series: can the State avoid revealing the CI’s identity by instead turning over a video of the CI activity to the defense?
In Williams, video captured multiple drug sales between the defendant and the CI, and though the CI was the sole participant, officers were able to observe the transactions from a distance and listen in on the conversations between the defendant and the CI. The defendant was charged with these sales. The defendant moved to reveal the CI’s identity, and the State countered that the video would substitute for the witness at trial. On appeal, the Florida appellate court ruled for the defense. The court declined to carve out an exception to Roviaro where the transactions were recorded, and the CI was clearly a direct participant. Further, the court found that the videos did not depict several of the charged transactions, and thus it was particularly important for the defense to learn the CI’s identity to effectively defend against the case in its entirety.
However, in a concurrence, an appellate judge noted that there could be cases where a clear audio-video recording of all the conduct at issue at trial might render it unnecessary to reveal the CI’s identity.
This is what happened in DeAraujo. There, the defendant was charged with possessing and dealing firearms. The government had a video recording and transcript of an alleged firearm sale from the defendant to a CI. Although the defendant raised a specific defense of entrapment, and the CI was the only witness to the alleged sale, the government countered that it would offer the video and transcript at trial instead of calling the CI. The jury would be able to view and hear the entirety of the incident. The federal district court concluded that the defense had failed to articulate what could be gleaned from revealing the CI’s identity beyond what was already captured by the footage, and ruled with the government. Compare United States v. Royal, No. CR421-135-6, 2022 WL 677577 (S.D. Ga. Mar. 7, 2022) (unredacted video of sales must be turned over to the defendant since videos were material to his defense, but CI’s identity properly withheld by the government).
Conclusion
The above survey of cases from federal and state courts offers insight into the various ways North Carolina courts may resolve the delicate issues that arise when confidential informant activity is captured by audio or video recording. Beville exemplifies why the practice of revealing footage to defense counsel and not the defendant can be problematic. Williams and DeAraujo are recent examples of the dilemma that arises when the State asserts that the CI’s identity need not be disclosed because a video will suffice. In one case, the court agreed, but in the other, the court concluded that questions remained and thus the video was no substitute for turning over the CI’s identity.
Defenders can draw a lesson from Loden and the cases discussed above that a motion to reveal the identity of the CI and turn over audio and video recordings can be an effective litigation strategy, leading to potential evidentiary concessions or improved plea offers. This is especially true where the defense can articulate how the CI’s identity and the recordings might have an impact on a specific defense theory.
In the next post in this series, I will tie the issues back to North Carolina and discuss a case where the defendant effectively set forth his defense theory to demonstrate why the State must disclose the CI’s identity.