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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Search Warrants for Lawyers’ Offices

Last week, the FBI executed a search warrant at the office of Michael Cohen, a lawyer who has worked for President Trump. The Washington Post reports that Cohen is being “investigated for possible bank and wire fraud,” perhaps in connection with “buy[ing] the silence of people who . . . could have damaged Trump’s candidacy in 2016.” The New York Times story on the matter is here. President Trump and others have suggested that the execution of the warrant was inappropriate because it infringes on the attorney-client privilege. Without getting into the politics, what do we know about the law?

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