This is Part V of a multi-part series on confidential informants (“CI’s”), motions to reveal the identity of CI’s, and discovery.
As discussed in earlier posts in this series (here and here), the defense is more likely to win a motion to reveal the identity of CI when the defendant is able to tie the potential CI testimony to a particular theory of defense and explain how it furthers that defense. In the landmark case of Roviaro v. U.S., the U.S. Supreme Court listed a variety of ways in which the CI’s testimony might be helpful for the defense and ruled that the CI’s identity must be turned over. However, North Carolina appellate courts have repeatedly stated that the defense cannot merely speculate about how the CI’s testimony might be relevant; the defense must clear an initial hurdle of showing how the testimony might resolve a material conflict at trial in order to prevail on a motion to reveal the identity of the CI. See State v. Dark, 204 N.C. App. 591, 593 (2010); State v. Watson, 303 N.C. 533 (1981). While defenders may invoke their federal due process rights in challenging whether this should be a requirement, they should be aware of what North Carolina appellate courts are demanding.
An interesting strategic implication of Dark and Watson is that in CI cases, the defense may benefit from committing to a particular theory of defense and “showing its cards” to the state in a pretrial hearing. Defenders are often reluctant to call their client to the stand, even in a pretrial hearing, unless the defendant’s testimony appears to be necessary or exceptionally persuasive. Defenders may be concerned about the risk of damaging cross-examination and the possibility that the testimony of an unsavvy client might hurt the case, even where the client is telling the truth (discussions of this dilemma in the media can be found here and here). In cases where there is a viable motion to reveal the identity of the CI, though, the risk will sometimes be worth the possible reward. The prospect of winning a dismissal, a concession in plea negotiations, or suppression of key evidence may counterbalance a tendency by the defense to avoid putting the client on the stand in a pretrial hearing.
Case in point: McEachern. State v. McEachern, 114 N.C. App. 218 (1994), is illustrative. In McEachern, police officers worked with a confidential informant to build a drug case on the defendant, Toney McEachern. The CI stated that he had seen a large amount of cocaine in McEachern’s trailer home and knew McEachern was selling it. The officers set up a controlled purchase. They provided the CI with money and drove him to McEachern’s trailer. The CI went into the home and returned to the officer’s car, showing the officer cocaine that he stated he had purchased from “Toney.” The same day, the officers obtained a search warrant for the trailer and searched it. They found evidence of drug dealing and charged McEachern with various drug offenses.
Why McEachern won. The key factor in McEachern was that the defendant took the stand during the pretrial hearing on the motion to reveal the CI. He gave a detailed account of what occurred on the day in question (and the day before). According to McEachern, the day before the controlled purchase and the search of McEachern’s trailer home, McEachern allowed his nephew, Charles Jackson, to use his home for a party. McEachern said he left the trailer to stay with his uncle in the nearby town of Lumber Bridge. He stayed in Lumber Bridge until the evening of the incident when his next-door neighbor, Charles McLaughton, called and asked for a ride to Red Springs. When McEachern drove back to his neighborhood to pick up McLaughton, he encountered the police, who had already performed the controlled purchase out of McEachern’s trailer that day and were about to execute the search warrant. McEachern maintained that there were no drugs in his house when he offered his home for his nephew’s party and that he had no idea who might have come and gone while he was staying in Lumber Bridge. He also added that he hadn’t seen his nephew since the incident and his attempts to locate his nephew were to no avail.
The defendant’s account, the “I-was-at-my-uncle’s-house-while-my-nephew-threw-a-party”-defense, may not have been the most plausible. However, in taking the stand and sharing his defense theory and alibi, the defendant succeeded in rendering the CI’s testimony material to a determination of guilt and potentially helpful. It was the trial judge’s task to assess the credibility of the witnesses at the pretrial hearing on the motion to reveal the identity of the CI, and the judge found McEachern credible enough to rule that the defendant had “established the informant as a material and necessary witness to… corroborate the defendant’s alibi, point toward third party guilt, and show nonexclusivity of the defendant’s premises.” See McEachern, 114 N.C. App. at 220. The judge thus sided with the defendant in ordering the State to disclose the CI’s identity. When the State refused to do so, the court dismissed all charges with prejudice based on a violation of the defendant’s constitutional due process rights. Id. at 220-21.
On appeal, the appellate court stressed that the only evidence connecting Mr. McEachern to the drug crimes was what the CI told the officer about what the CI observed inside the home. The court agreed with the trial judge that the CI could provide critical testimony as to the identity of the individual who sold the drugs and the CI’s testimony could corroborate or controvert Mr. McEachern’s alibi. Interestingly, the Court of Appeals cited to Brady v. Maryland, 373 U.S. 83 (1963), for the proposition that suppression of evidence “favorable to an accused” violates due process where material to guilt. Id. at 222. It doesn’t seem clear that the CI’s testimony would have been favorable to the defense, although it clearly would have been material to guilt or innocence. Ultimately, the Court of Appeals upheld the trial court’s decision.
The State’s strategic considerations. In reflecting on McEachern, one might ask whether the State intended to present evidence regarding the controlled purchase and the CI’s involvement in the case at trial. As we’ve seen in a previous post in this series, the court’s decision on a motion to reveal the identity of a CI may be influenced by the State’s choices as to what evidence they attempt to present at trial. If the State planned to introduce evidence pertaining to the controlled purchase, it seems unlikely that the State would be able to introduce the CI’s account of what occurred without calling the CI to the stand (and thus revealing the CI’s identity) given hearsay and confrontation concerns. But could the State introduce the officer’s observations of the controlled purchase without divulging the CI’s identity? Perhaps, although this might render the controlled purchase more of a “main event,” tending toward disclosure of the CI’s identity, rather than a “lead-up buy,” tending toward non-disclosure (see this prior post for a discussion of main events and lead-up buys, and this post for a discussion of the foundational principles established in Roviaro). Perhaps the State had no intention of introducing testimony pertaining to the CI’s involvement, and instead planned to rely on the drugs found during the ultimate search of the trailer, the defendant’s proximity to the home, and the defendant’s dominion over the premises to prove its case. It’s not clear from the opinion what course the State intended to take, and the appellate court’s analysis does not appear to depend on the State’s decisions in this regard.
Lessons from McEachern and Concluding Thoughts
Practitioners today can draw valuable lessons from McEachern. In cases where the defense is considering a motion to reveal the identity of the CI, defenders should carefully consider the potential advantage and risk of asserting a defense theory by calling their client to the stand in a pretrial hearing.
There are risks associated with this strategy. On the one hand, the State is likely prohibited from introducing the defendant’s pretrial testimony on the issue of guilt at trial. See Simmons v. United States, 390 U.S. 377, 394 (1968) (a defendant should not have to jeopardize one constitutional right, the privilege against self-incrimination, to protect another; although note that the Fourth Amendment was implicated in Simmons, rather than the Fifth and Sixth Amendments rights implicated in pretrial litigation involving a CI). However, the State can still use the pretrial testimony as impeachment material should the defendant take the stand at trial. See State v. Bracey, 303 N.C. 112 (1981). Pretrial testimony offered by a defendant “must often be highly prejudicial,” as it may well “link” the defendant to a key piece of evidence for the prosecution. See Simmons, 390 U.S. at 391. This rings especially true for CI cases, where the defendant may acknowledge proximity to contraband or involvement in an incident, while maintaining some other defense, such as lack of knowledge or entrapment. Consider McEachern, where the defendant conceded ownership of the premises where drug activity occurred, while asserting an alibi.
Note that the defendant is not bound by any pretrial defense asserted and may rely on a different defense at trial as long the defense complies with the statutory deadlines set forth in G.S. 15A-905(c).
Defenders should weigh the risks above, listen carefully to their client, and consider whether it is advantageous to call their client to the stand during the pretrial hearing, as the defense did successfully in McEachern.