Confidential Informants, Motions to Reveal Identity, and Discovery: Part I, Roviaro v. U.S.

Today I begin a series of blog posts discussing the law around confidential informants, motions to reveal identity, and discovery. Technological developments have made it more common for law enforcement to document the activity of a confidential informant (“CI”) through video and audio recording. This change raises challenging legal questions, such as whether the identity of the confidential informant must be revealed to the defense and what must be turned over in discovery. Today’s post discusses the landmark case of Roviaro v. U.S. and introduces the basic issues, focusing on the factors that weigh toward or against the disclosure of the CI’s identity to the defense. Future posts will discuss the relevant statutes, key state cases, and federal courts’ analysis of these questions, along with procedural and strategic considerations.

The law on confidential informants and specifically, when the State must reveal the identity of the CI to the defense, is grounded in Roviaro v. U.S., 353 U.S. 53 (1957). Roviaro has been cited more than 5,000 times by subsequent courts. The Roviaro Court expressly declined to create a “fixed rule,” instead setting forth a framework for analysis. The basic test involves determining whether the CI was an “active participant” in the crime alleged (State must likely disclose identity) or more of a “tipster” (State may likely withhold identity). However, the analysis has been refined and explicated in the lower courts, as the U.S. Supreme Court has not addressed the issue in depth since the 1950’s and 60’s. See Roviaro; McCray v. State of Ill., 386 U.S. 300 (1967) (State need not disclose the CI’s identity before a motion to suppress where the CI was a mere tipster).

The question of whether the identity of a confidential informant should be turned over to the defense involves tension between various objectives. On the one hand, the State has an interest in facilitating cooperation by protecting those who work with law enforcement. On the other hand, the Defense has a fundamental right to a fair trial and a due process right to effectively prepare its case under the Fifth and Fourteenth Amendments, as well Sixth Amendment confrontation rights.

Roviaro is important and interesting not only because the case is so fundamental to our modern understanding of the law of confidential informants, but also because the facts are unusual and dramatic.

Two federal narcotics agents were working with two Chicago police officers to bring a drug case against the defendant, Albert Roviaro. The four law enforcement officers secured the services of a CI, “John Doe.” As one might only expect to see in the movies, one of the police officers “secreted himself in the trunk of Doe’s Cadillac, taking with him a device with which to raise the trunk lid from the inside.” Roviaro at 56. The CI drove the Cadillac to a particular location followed by the three other law enforcement officers. The defendant entered the Cadillac and sat in the passenger seat beside the CI. They then proceeded on a “circuitous route.” When the CI finally stopped the car, one of the federal agents stepped out of his car and saw the defendant get out of the Cadillac, walk a few feet to a tree, pick up a small package, return to the Cadillac, and deposit the package on the passenger side. The federal agent immediately retrieved the package from the floor of the Cadillac.

Throughout, the officer hidden in the trunk of the Cadillac was listening carefully to the conversation between the CI and the defendant. He overheard a variety of important details: defendant’s urging the CI to pull over and cut the motor so as to lose a “tail,” defendant’s inquiry into money the CI owed him, and defendant’s statement regarding bringing “three pieces this time.” Roviaro at 57. The hidden officer raised the lid of the trunk once the car came to a stop and peeked out the crack to see the defendant walk to the tree and retrieve the package. He then climbed out of the trunk to find his fellow officer holding the package which contained three glassine envelopes of white powder, later determined to be heroin.

The essential question for the U.S. Supreme Court was whether a fair trial required that the Government reveal the identity of the CI. The Government asserted that the identity need not be revealed, as the law enforcement witnesses could supply all the necessary detail at trial. After all, the officer in the trunk had essentially a front row seat to the transaction (albeit with only aural rather than visual access), and the other officers observed many of the crucial details. Essentially, the Government argued that no testimony the CI could offer at trial would have any bearing on the guilt or innocence of the defendant, and the case could clearly be made with the law enforcement officers.

The defense, on the other hand, stressed that the CI was directly involved in the transaction and was the only true witness to what occurred. He was sitting next to the defendant, he knew the context of what happened and what was said, and it was imperative that the defense have access to his testimony at trial.

Ultimately, the Supreme Court sided with the defense and determined that the identity of the CI must be revealed. The CI was simply too wrapped up in the facts on which the charges were based; he was the “one material witness” to the transaction who could “controvert, explain, or amplify” the testimony of the law enforcement officers. Roviaro at 64. The Court emphasized that the charge did not assert mere possession of heroin but knowing possession of the drug. The Court reasoned that the testimony could have a bearing on a variety of defenses, including entrapment, identity, or lack of knowledge of the contents of the package. The Court also pointed out that the CI denied knowing the defendant when he subsequently encountered him at the police station. (In the dissent, Justice Clark argued strenuously that the CI said this only to maintain the ruse.)

North Carolina courts have relied on Roviaro (along with McCray), in determining when the identity of the CI must be revealed in a series of cases, including State v. McEachern, 114 N.C. App. 218 (1994), and State v. Dark, 204 N.C. App. 591 (2010) (Dark was discussed by my colleague, Jeff Welty, here). In Roviaro, the hint of Brady (would the CI have denied knowing the defendant at trial?) and the array of possible ways the CI’s testimony might have bolstered a defense led the Supreme Court to side with Roviaro. However, North Carolina appellate courts appear to be moving toward requiring more of the defendant than floating possible defenses; they often require the defendant to put forward a specific defense and articulate how the CI’s testimony would make a difference. I will explore the facts of these cases and their strategic implications further in future blog posts.

Examining Roviaro and its progeny, the following factors support disclosure of the CI’s identity:

  • The CI was an “active participant” in the crime alleged
  • If not an active participant, the CI’s involvement is bound up with facts at issue at trial
  • The defendant has asserted a defense, such as lack of knowledge, alibi, or entrapment, and the CI’s testimony is relevant to a determination of whether the defense is valid

The following factors weigh against disclosure of the CI’s identity:

  • The CI is a “mere tipster”
  • The defendant has failed to show how the CI’s testimony would be relevant or helpful to establish a defense
  • The defendant already knows the identity of the CI

The Roviaro Court concluded that the officer in the trunk was no substitute for the man in the driver’s seat, requiring disclosure of the CI’s identity for a full and fair trial. But what if a video or audio recording captures the entire transaction? And when a video is made, how does the State comply with open file discovery requirements while attempting to maintain the confidentiality of the informant’s identity? Stay tuned.