In Part I of a series of posts on confidential informants, I revisited the landmark case of U.S. v. Roviaro, which began when a Chicago police officer hid in the trunk of an informant’s car to listen in on a heroin deal. The U.S. Supreme Court held that the officer in the trunk was no substitute for the confidential informant (“CI”) in the driver’s seat and required disclosure of the CI’s identity to the defense. I also introduced the basic dichotomy set out in Roviaro: generally, where the CI is more of a tipster, the CI’s identity need not be revealed, but where the CI is an active participant, the defense is entitled to it. The constitutional underpinnings of this distinction, based on due process and confrontation principles, continue to guide courts today, although the analysis has evolved.
This second post will address the North Carolina statutes at play. These statutes complicate and refine the basic constitutional question of whether fundamental fairness requires the State to turn over the CI’s identity.
G.S. 15A-903 – Open File Discovery
First, there is the baseline statutory requirement that essentially the entire investigatory file must be provided to the defense under G.S. 15A-903. This “open file” discovery requirement has been the law in North Carolina since 2004. Defining the scope of the investigatory file is at times difficult. Especially in drug cases, the “file” may be a sprawling, many-tentacled series of investigations. In cinematic terms, it can be difficult to determine where the movie should begin and which sub-plots are part of the film. For example, in a drug trafficking case, if investigators have been aware of the defendant for decades, and his name has come up in several interviews, is the complete history properly considered part of the file that must be turned over per G.S. 15A-903? Must all the related cases that touched on the defendant be turned over? Or just the immediate actions that led up to the drug transaction at issue at trial?
The trial court must ultimately draw these lines where the parties disagree, and questions of relevance and admissibility at trial will influence the court’s decision-making. For the purposes of this series, the two most common types of CI interaction are almost always properly considered part of the investigative file. These two types of CI activity are what I will refer to as “main event” drug transactions (drug activity for which the defendant has been indicted) and “lead-up buys” (drug activity that is used to develop probable cause for a future search or to build up to a “main event”). As “main event” and “lead-up” activity are generally going to be relevant to the subject of the trial, the baseline statutory principle is that the investigative file pertaining to these CI activities (including police reports, interviews, videos, and more) should be shared with the defense.
G.S. 15A-904(a1) – Exception for Identity of CI
Not so fast, though. G.S. 15A-904(a1) makes an express carve-out: “the State is not required to disclose the identity of a confidential informant unless the disclosure is otherwise required by law.” In practice, this often means that the State turns over reports in which law enforcement refers to the CI as only “CI” rather than revealing the CI’s name. The State may also attempt to conceal additional details that would lead the defendant to identify the CI, by providing reports that refer to a period of time rather than a particular date, or a generalized location rather than an exact spot. The State may desire to go further to protect the CI by omitting an episode involving the CI entirely. However, where the CI activity naturally builds to the main event, it is likely improper for the State to “start the movie” just before the main event and cut the CI out of the picture, as such a reading of the statute strains the definition of “investigative file” under G.S. 15A-903.
But what is the State to do if including details as to the precipitating incident would almost certainly reveal the CI’s identity? For starters, the State may want to avoid the type of investigation where law enforcement springs from the bushes immediately after the CI calls the defendant on the phone (such techniques are likely to render efforts to conceal the CI’s identity useless in the first place). As will be discussed in a future blog post on video recordings, the court may also approve of the use of redaction, muting, blurring, and other approaches to comply with constitutional and statutory requirements while shielding the CI’s identity.
G.S. 15A-908 – Protective Orders
The State may also choose to apply in writing under G.S. 15A-908 for a protective order preventing or limiting disclosure of certain materials upon a showing of “substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment.” Given G.S. 15A-904(a1), it doesn’t appear that such action is necessary where the State is merely withholding the CI’s name. However, invoking 15A-908 is likely necessary where the State desires to withhold large swaths of the investigative file, such as a video in its entirety or a myriad of investigative details.
The court will then have to balance the State’s interest in protecting the CI against the defendant’s constitutional and statutory rights. Tricky questions can arise, especially given that the statute allows the State to apply for a protective order ex parte. However, the defense is entitled to notice that an order was granted per G.S. 15A-908(a). Where the defense has concerns that key information necessary to an effective defense has been withheld, the defense may litigate the question. Further, the “affidavits or statements” supporting the State’s motion must be sealed and preserved for appellate review.
G.S. 15A-978 – When CI’s Identity Must Be Revealed for a Motion to Suppress
Finally, there is G.S. 15A-978, located in the part of Chapter 15A dealing with motions to suppress rather than discovery. I will dedicate a separate blog post to this statute, but for now, it is worth observing that G.S. 15A-978 addresses the circumstances under which the State must reveal the CI’s identity in the context of a motion to suppress, whereas Roviaro and the vast majority of the cases address the question of whether the State must reveal the CI’s identity before trial. Note that McCray v. Illinois, 386 U.S. 300 (1967), mentioned alongside Roviaro in Part I, also dealt with the question of what the defense should be entitled to in challenging a search warrant pursuant to a motion to suppress, not the question of whether the State must provide the defense with the CI’s identity to ensure a fair trial.
In the next post on CI’s, I will begin to tackle the challenging question of how to handle videos of CI activity. Stay tuned.