motions to reveal identity

Confidential Informants, Motions to Reveal Identity, and Discovery: Part VI, Motions to Suppress and the “Two Officer Rule”

For the final installment of this series on confidential informants, motions to reveal identity, and discovery, we will look at a unique statute in North Carolina concerning when the identity of a confidential informant (CI) must be revealed: G.S. 15A-978(b). This statute only applies to motions to suppress, rather than trial. Recall back to Part I of this series, which addressed Roviaro v. U.S., 353 U.S. 53 (1957). Roviaro established the basic factors to consider when deciding whether the State must disclose the identity of the CI to the defendant to ensure a fair trial. Another U.S. Supreme Court case decided ten years later, however, McCray v. State of Ill., 386 U.S. 300 (1967), addressed the separate but related question of when the defendant is entitled to learn the CI’s identity to have a fair opportunity to litigate a motion to suppress.

At a motion to suppress, the considerations are somewhat different from trial. The last several posts addressed the question of when testimony from the CI is material in determining whether or not the defendant is guilty. In contrast, the question at the motion to suppress stage is not the guilt or innocence of the defendant. The question in CI cases is usually whether a search or seizure violated the defendant’s Fourth Amendment rights. The issues to be decided may be whether law enforcement had good reason to rely on information provided by the CI, whether law enforcement corroborated the information, or whether the officers are being truthful about their interactions with the CI. G.S. 15A-978(b) addresses a related, but narrow question: can we rely on the officer’s assertion that the CI exists?

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Confidential Informants, Motions to Reveal Identity, and Discovery: Part V, Asserting a Defense Theory

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.

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Confidential Informants, Motions to Reveal Identity, and Discovery: Part IV, How Federal and State Courts are Handling CI Video and Audio Recordings

Special thanks to Sheridan King, Summer Law Fellow at UNC SOG, for her significant contributions to the research and development of this post.

The previous post of this multi-part series on confidential informants (“CI’s”) delved into possible approaches to handling video and audio recordings of confidential informant activity (Parts I and II can be found here and here). CI activity is often recorded during the “main event” (the incident for which the defendant is indicted) and during “lead-up buys” (controlled purchases that create probable cause to search a location). Though trial courts throughout North Carolina regularly determine when CI recordings must be turned over to the defense, there is a scarcity of North Carolina appellate law on the subject. Thus, this post will look to other jurisdictions, including federal district courts and other states, to survey how judges are reckoning with these emerging issues pertaining to discovery, the defendant’s constitutional right to a fair trial, and the State’s interest in protecting the identity of informants.

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Confidential Informants, Motions to Reveal Identity, and Discovery: Part III, How to Handle the Video

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.

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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.

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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.

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