The Confidential Informant File: What Is It and When Must It Be Disclosed to the Defense?

I recently completed a series of posts on issues surrounding confidential informants (“CI’s”), discovery, and motions to reveal the CI’s identity. In this “bonus” post, I will discuss a related question: what is the “CI file” and when must the State turn it over to the defense?

Let’s say the defense is successful in compelling the State to turn over the CI’s identity. Perhaps the State agrees that the CI’s involvement is central to the case and the defense will likely win under the test outlined in Roviaro v. U.S., 353 U.S. 53 (1957) (see discussion here), so the State voluntarily turns over the CI’s identity. Perhaps the defense prevails in a contested hearing on a motion to reveal the CI’s identity. Or perhaps the State decides that the trade-off of “blowing the CI’s cover” is worth it to prove the individual case against the defendant, and the State chooses to call the CI to the stand. In all three scenarios, the defense will learn the CI’s name, but key questions remain. Is the CI a trustworthy witness? What is the CI’s history of reliability or lack thereof? What is the CI getting in exchange for cooperation? Is the CI being paid by the State? Is the CI in legal jeopardy, and if so, what promises of leniency have been made?

The answer to these questions, and more, may be located in a file law enforcement keeps for each individual CI. It is common for law enforcement agencies, especially larger agencies accredited by organizations such as CALEA (Commission on Accreditation for Law Enforcement Agencies) or NCLEA (North Carolina Law Enforcement Accreditation), to maintain such files. Accrediting bodies may have standards requiring recordkeeping when using confidential informants. See, e.g., CALEA Standard 42.2.6 on Informants; see also, U.S. Attorney General’s Guidelines; International Association of Chiefs of Police’s Model Policy. Local law enforcement agencies may have directives or policies addressing the maintenance of CI files.

What might be contained in the CI file?

Although various accreditation bodies require law enforcement to keep a file for each CI, it is not clear exactly what the file should contain. The CI file may contain:

  • Descriptive information: gender, race, age, height, weight, hair color, eye color, and other distinguishing features
  • Contact information or address
  • A photo of the CI
  • Information regarding the CI’s associates
  • Information regarding the CI’s potential substance use disorder or mental health issues
  • History of reliability/unreliability of the CI in narrative form; a “suitability” report
  • The CI’s criminal history
  • Narratives recording the CI’s prior involvement in various investigations
  • Agreements or contracts indicating the terms and expectations of cooperation
  • Information on pending charges as to which the CI expects to receive some benefit (leniency, specific plea terms, etc.)
  • Record of prior payments made to the CI

What is the legal basis for the defense to seek the CI file?

Most commonly, the defense will rely on Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), when making a motion for the State to turn over part or all of the CI file. These landmark cases discuss the constitutional due process requirement that the State turn over material exculpatory information to the defense (Brady), including material information that could be used to impeach a State’s witness (Giglio). Although practitioners often use the term “Giglio information” when referring to impeachment of a law enforcement officer, the impeachment evidence at issue in the original Giglio case actually involved a civilian witness, not an officer.

“Evidence is considered ‘material’ if there is a ‘reasonable probability’ of a different result had the evidence been disclosed.” State v. Berry, 356 N.C. 490, 517 (2002). My colleague, Jeff, discussed the “materiality” standard for determining when impeachment evidence must be turned over in this recent post (as well as in an older post). See also, Thomas P. Hogan, An Unfinished Symphony: Giglio v. United States and Disclosing Impeachment Material about Law Enforcement Officers, 30 Cornell Jour. of Law and Public Policy 715 (2021) (discussing the difficulty in determining materiality through a useful series of concrete examples). A variety of factors come into play, including the projected impact of the impeachment evidence, the centrality of the witness to the case against the defendant, the overall strength of the case, the similarity between the impeachment evidence and the facts at issue in the case, and more. In considering the CI file and whether it must be turned over, relevant questions include: how central is the CI to the case? How damaging is the impeachment evidence and to what extent does it show bias, dishonesty, or a motive to lie? Are there facts in the CI file that relate or implicate the facts at issue at trial?  Was the CI “working off” pending charges at the time of the incident? See Rules of Evidence 608 and 609; State v. Rankins, 133 N.C. App. 607, 610-11 (1999) (reversible error where trial court would not allow defense to present evidence showing that State’s witness had a cooperation deal); State v. Prevatte, 346 N.C. 162, 163 (1997), discussed by my colleague, Phil, here (following Davis v. Alaska, 415 U.S. 308 (1974), and ordering a new trial where defense was not permitted to cross-examine the State’s principal witness regarding pending charges and possible promises or inducements to testify).

The caselaw in North Carolina regarding when the CI file must be turned over to the defense is scant. However, courts in other jurisdictions have found error where the State fails to disclose information in the CI file. In Schofield v. Palmer, 279 Ga. 848 (2005), the defendant won a new trial in a death penalty case because the State suppressed information from the CI’s file showing that officers had paid the CI $500.00 for information implicating the defendant as the murderer. The CI’s identity was no longer confidential at trial, as the DA named the CI during the opening statement. However, the State refused to turn over the CI file during trial and the post-conviction litigation stage. The defense finally learned of the payments to the CI after the court conducted an in camera review of the file during a habeas corpus evidentiary hearing. The trial court found that the defense was deprived of the opportunity to impeach the CI with “an age-old, logical, pecuniary argument that [the CI] had a motive to lie.” See Schofield, 279 Ga. at 853. Despite the “considerable amount of evidence incriminating Palmer in the murders apart from [the CI’s] testimony,” the Supreme Court of Georgia affirmed the trial court’s order granting new trial, concluding that a Brady violation had occurred and that the integrity of the criminal justice system had suffered from a “corruption of the truth-seeking process.” Id.

In State v. Williams, 392 Md. 194 (2006), a key witness for the State was a paid CI in unrelated matters. The witness was actively seeking and obtaining leniency related to cooperation with the Baltimore PD. The Maryland Court of Appeals held that a reversible Brady violation occurred where the State failed to disclose the information. Although the prosecuting attorney was not aware of the witness’s status as a paid CI nor the deals made by other prosecutors in her office, she was presumed to have knowledge. Though the State characterized defense counsel’s cross-examination of the witness at trial as “nothing short of superb” (despite the State’s failure to disclose the information), the Maryland Court of Appeals found the suppressed information material.

What if the CI will not testify at trial? Is there still value in the impeachment material?

In many cases, the State does not plan to call the CI to testify at trial. Where the CI is not testifying, it will be significantly more difficult for the defense to articulate why the CI file may contain exculpatory material. After all, the information will not be used to impeach the CI before the jury. However, the defense may be able to articulate some other theory for why the court should conduct an in camera review of the CI file. Perhaps there is a good faith concern that the CI has a history of planting drugs or a prior pattern of dishonest behavior that undermines confidence in the State’s other evidence (a recent example of dishonesty on the part of a CI and a detective had serious consequences). The file also may contain evidence relevant to a defense such as entrapment or third-party guilt. In such circumstances, review and potential disclosure could be required.

What about open file discovery?

In certain cases, the defense may also have an argument that portions of the CI file should be turned over pursuant to open file discovery, see G.S. 15A-903. However, much of the CI file may not fall under the definition of a case “file” as set forth in G.S. 15A-903(a)(1)(a), given that the CI file generally contains information beyond what was “obtained during the investigation of the offenses alleged to have been committed by the defendant.” To the extent that the CI file contains information or narratives pertaining to the principal investigation of the defendant, the defense may be able to obtain the information pursuant to G.S. 15A-903.

The State may have valid reasons to seek to withhold portions of the CI file pertaining to the CI’s previous cooperation in other matters. If such information were revealed to the defense and made public, the CI may incur risk beyond that arising from revealing the CI’s identity and involvement in the case at hand. Thus, the State may seek a protective order pursuant to G.S. 15A-908 to avoid disclosing certain parts of the CI file based on “substantial risk” to the CI (G.S. 15A-908 provides a broader basis to withhold information than G.S. 15A-904(a1), which only refers to withholding the CI’s identity). However, the constitutional due process guarantees of Brady/Giglio would likely trump these statutory provisions should they conflict. If disclosure is called for, the State may consider seeking a protective order to prevent the defense from sharing the information beyond the defense team.

The State’s duty: procedural and logistical issues

In most cases, the CI file will not be at the State’s fingertips, but rather is kept by law enforcement. The State will thus have to request production of the CI file for review.

Under Kyles v. Whitley, 514 U.S. 419 (1995), prosecutors have “a duty to learn of any favorable evidence” known to those acting on the State’s behalf. Because it is a constitutional obligation, prosecutors must attempt to uncover such information and turn it over, even in the absence of a defense request, “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” See Kyles, 514 U.S. at 432-33 (citing United States v. Bagley, 473 U.S. 667, 682 (1985)).

Also, as noted in prior posts on this topic, disclosure obligations under N.C. R. Prof. Cond. 3.8 may be broader than that required by Brady/Giglio. The rule requires that prosecutors conduct a “reasonably diligent inquiry” into information that “tends to negate the guilt of the accused,” and the rule does not refer to a materiality threshold. Cf. Cone v. Bell, 556 U.S. 449, 470, n. 15 (2009) (“the obligation to disclose evidence favorable to the defense may arise more broadly under a prosecutor’s ethical or statutory obligations… the prudent prosecutor will err on the side of transparency, resolving doubtful questions in favor of disclosure”).

In camera review is a way for prosecutors to seek guidance from the court in determining what should be disclosed under Brady/Giglio and the Rules of Professional Conduct rather than deciding for themselves. In-chambers review helps prevent potential miscalculations as to what is material from the defense’s perspective and allows for a decision by a neutral judge. Defenders should ask for any information in the file that is not released to the defense to be placed under seal so that an appellate court can review the trial court’s decision on the materiality of the information. In certain circumstances, such as when the CI’s identity has not been disclosed to the defense, but review of the CI file is still called for, redaction of parts of the file before disclosure to the defense may be appropriate.

Timing

The timing for when disclosures of impeachment material should be made is a challenging topic, and a complete discussion is outside the scope of this post. The U.S. Supreme Court has held that “the Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant.” See United States v. Ruiz, 536 U.S. 622, 633 (2002) (noting concern that prospective witnesses could be exposed to harm and specifically referring to the risk of a CI’s identity being revealed before the plea stage); see also State v. Allen, 222 N.C. App. 707, 723-24 (2012). However, courts have also held that disclosure must be made early enough to “allow the defense to use the favorable material effectively in the preparation and presentation of its case, even if satisfaction of this criterion requires pretrial disclosure.” See United States v. Pollack, 534 F.2d 964, 973 (D.C. Cir.), cert. denied, 429 U.S. 924 (1976) (citing United States v. Elmore, 423 F.2d 775, 779 (4th Cir. 1970); see also United States v. Deutsch, 373 F.Supp. 289, 290-91 (S.D.N.Y. 1974)). The question of when exculpatory material under Brady (as opposed to purely impeachment material under Giglio) must be turned over is an open question in North Carolina. See Allen, 222 N.C. App. at 724.

Rule 3.8 of the Rules of Professional Conduct may require that impeachment material be disclosed earlier than the Constitution requires, though it is not clear what “timely disclosure” means under the rule. See In re Petition to Stay the Effectiveness of Formal Ethics Opinion 2017-F-163, 582 S.W.3d 200, 208 (Tenn. 2019) (discussing state court opinions finding prosecutor’s ethical duties broader than those under Brady and state court opinions finding duties coextensive with Brady; discussing how various state courts have interpreted requirement of “timely disclosure”). Prosecutors may elect to turn over Brady/Giglio information prior to the plea stage to ensure that a plea is fully informed, notwithstanding the fact that doing so is not required under Ruiz.

Conclusion

To conclude, the CI file is an important source of information, and practitioners should be aware of the array of laws, rules, and policies governing maintenance and disclosure. CI’s do not tend to collaborate with the government “out of the goodness of [their] heart.” Williams, 392 Md. at 205. The CI file will almost always contain something that can be used to impeach the CI, such as the fact that the CI is being paid by the government or working off pending charges. Knowing that the file exists, what might be in the file, what must be disclosed as “material,” and how to navigate these questions are key aspects of the litigation of CI cases.