This is Part III of a multi-part series on confidential informants. Earlier posts focused on the foundational concepts of U.S. v. Roviaro, 353 U.S. 53 (1957), here, and the applicable North Carolina statutes here. Today’s post explores the novel issues that arise as more and more confidential informant (“CI”) interactions are recorded on video.
discovery
Confidential Informants, Motions to Reveal Identity, and Discovery: Part II, What Statutes Apply?
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.
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.
Discovery of Officers’ Text Messages
More than a trillion text messages are sent each year in the United States alone. Some of these messages are work-related communications from law enforcement officers to fellow officers, witnesses, prosecutors, and others. Which, if any, of these messages are discoverable? How should officers preserve discoverable messages? Must prosecutors ask for officers’ text messages before providing discovery to the defense? This post begins to address these questions.
Should an Officer Use His or Her Personal Cell Phone to Take Work-Related Photographs?
I’ve been asked several times lately whether it is a good idea for an officer to use his or her personal cell phone to take work-related photographs, such as photographs of a crime scene or photographs of seized items. In this post, I explain why I think that’s OK, so long as it is consistent with agency policy.
How O.J. Got the Fuhrman Tapes (and You Can Get Out-of-State Materials)
Almost everyone knows about the trial of O.J. Simpson for the murders of Nicole Brown Simpson and Ronald Goldman. Many people also know about a key piece of evidence introduced by the defense—taped interviews in which one of the investigating officers, Los Angeles Police Department detective Mark Fuhrman, used racial slurs. Less well known is the legal mechanism that the defense team used to obtain the tapes, which were in the possession of a North Carolina writer who refused to turn them over voluntarily. How did O.J.’s lawyers compel a resident of North Carolina to produce the tapes in faraway Los Angeles, California? This post reviews the procedure used in the O.J. case and other ways to obtain out-of-state materials in a criminal case.
A Rare Opinion on Criminal Discovery in North Carolina
There seem to be fewer and fewer reported decisions about criminal discovery in North Carolina. A recent North Carolina Supreme Court decision finding a discovery violation by the prosecution, State v. Davis (Apr. 15, 2016), made me wonder why. This post reviews the evolution of North Carolina’s criminal discovery laws, which has brought relative calm to this area of law, along with the decision in Davis, which deals with a recurring issue about disclosure of expert opinion.
New Ethics Opinion on Incarcerated Defendants’ Right to Review Discovery
Many criminal defense lawyers are reluctant to give incarcerated clients copies of discovery materials. Lawyers may worry that the materials will be stolen by other inmates, who will then use the information in the materials to bolster false claims that the defendant confessed to them. And lawyers may believe that certain clients simply should not have access to certain materials, such as the addresses and phone numbers of witnesses or alleged victims. But what if a client insists on having a copy of discovery materials? A new State Bar ethics opinion addresses this issue.
Defendant’s Right to Third Party Confidential Records
Suppose Defendant is charged with sex offense against a child. He knows that DSS previously investigated similar allegations made by the child against other people and heard that DSS found those charges to be unfounded. When Defendant subpoenas the records from DSS, the agency moves to quash. Is Defendant entitled to the records? The answer is: Sort of. On these facts, Defendant has a right to have the court do an in camera review of the records. If the court finds that they contain favorable, material evidence, it has to be turned over to the defendant. This post outlines the relevant law, which stems from a U.S. Supreme Court case called Pennsylvania v. Ritchie, 480 U.S. 39 (1987).
Entrapment
A national, empirical study of defenses found that the defense of entrapment arose in just 0.08% of cases, usually “to little avail.” Stephen G. Valdes, Frequency and Success: An Empirical Study of Criminal Law Defenses, Federal Constitutional Evidentiary Claims, and Plea Negotiations, 153 U. Penn. L. Rev. 1709, 1716 (2005). But every now and again, … Read more