Law enforcement officers regularly work with Confidential Informants (CIs) when investigating organized crime or building cases against individuals in leadership positions within criminal enterprises. CIs are most commonly involved in drug cases, ranging from high-level trafficking to street-level dealing, but they may also play a role in the investigation of other crimes such as bribery, fraud, or firearms trafficking.
When cases involving CIs make it to North Carolina courts, difficult questions often arise as to how to balance the state’s interest in maintaining the confidentiality of the informant’s identity with the defendant’s rights to a fair trial and open-file discovery. These questions go beyond the traditional binary of whether the CI’s identity should or should not be revealed to the defense. See Roviaro v. United States, 353 U.S. 53 (1957). Especially as technology evolves and CI activity is regularly captured through audio/video recordings, judges must navigate challenging decisions regarding precisely what should be turned over to the defense.
Although these discovery issues may seem mundane on first blush, the dilemmas that arise are important and nuanced. The questions have a constitutional dimension in that they implicate the defendant’s due process and confrontation rights, along with aspects of statutory and caselaw interpretation.
Regular readers of this blog will be familiar with the multi-part series of posts I wrote on CIs. I’ve taken this material and combined it into one resource, a bulletin on CIs in North Carolina: Discovery, Audio/Video Recordings, and Motions to Reveal Identity. In addition to questions such as how to determine when the CI’s identity and recordings of CI activity must be turned over to the defense, the bulletin also addresses practical questions regarding the administration of discovery, “main events” vs. “lead-up buys,” the “CI file,” and issues arising at the motion to suppress stage.
As many of the issues are novel and discovery litigation rarely percolates up to our appellate courts, applicable North Carolina law is relatively scarce. Thus, the bulletin looks to other jurisdictions- not just state courts, but especially federal district courts that regularly tackle issues of discovery- for guidance on these topics.
The bulletin can be found here. I would appreciate any feedback you may have. You can email me at spiegel@sog.unc.edu or leave comments below.