The Informer’s Privilege

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The court of appeals recently decided State v. Dark. It’s a concise opinion that summarizes and applies the black-letter law on an issue that comes up regularly: when must the state disclose the identity of a confidential informant to the defendant?

G.S. 15A-904(a1) says that “[t]he State is not required to disclose the identity of a confidential informant unless the disclosure is otherwise required by law.” This is simply the statutory codification of the so-called informer’s privilege — actually the privilege of the state to keep secret the identity of confidential informants, in the interest of ensuring the informants’ safety and continued usefulness. So, an informant’s identity isn’t normally part of open file discovery. But what about the qualifier “unless the disclosure is otherwise required by law”?

The cornerstone case regarding disclosure is Roviaro v. United States, 353 N.C. 53 (1957), which holds that when disclosure would be “relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause,” it is required. There are a number of North Carolina cases interpreting and applying Roviaro, such as State v. Stokley, 184 N.C. App. 336 (2007), State v. Withers, 179 N.C. App. 249 (2006), State v. Gaither, 148 N.C. App. 534 (2002), and State v. Johnson, 81 N.C. App. 454 (1986). The following general rules emerge from these cases:

1. The burden is on the defendant to show that disclosure should be required.

2. Factors supporting disclosure include: (a) the informant was a participant in the crime, (b) there is a conflict between the state’s evidence and the defendant’s evidence that the informant could clarify, and (c) the informant is a likely witness for the state at trial.

3. Factors opposing disclosure include: (a) the informant was a mere “tipster,” (b) the defendant admits culpability or presents no evidence, thus leaving no conflict for the informant to clarify, (c) substantial evidence independent of the informant establishes the defendant’s guilt, and (d) disclosure would endanger the informant.

There’s no hard and fast rule about how these factors weigh against each other — it is a “totality of the circumstances” analysis. Older cases tended to suggest that if the informant was a participant in the crime, disclosure was automatically required, but Dark is an example of a recent trend away from that position. In Dark, the informant arranged and was present for a drug sale between the defendant and an undercover officer. The defendant moved for disclosure of the informant’s identity, but the trial court denied the motion. The court of appeals affirmed, reasoning that “only the informant’s presence and role in arranging the purchase weigh in favor of disclosure,” given that the state relied on the undercover officer’s testimony and that the defendant presented no evidence, and that factor alone was insufficient.

There are a number of tricky questions about the informer’s privilege — like how to handle a statement by an informant when the contents of the statement tends to identify the informant — but I’ll save those for another post.

4 comments on “The Informer’s Privilege

  1. This is the issue I want to see addressed. An informant goes to a “drug house” and buys crack from “Joe Target” in a direct, hand-to-hand sale. A search warrant is issued and executed. “Joe Target” is not present during the search, but “Jane Occupant” is the only person present and gets charged with possessing the crack left remaining at the house (conveniently hidden and not in plain view). Jane was not present during the sale giving rise to the search warrant.

    Shouldn’t I get the identity of the informant to testify that Jane was not present during the sale, that the informant only dealt in the past with Joe, etc.?

  2. I am currently fighting a case wherein a narc either invented a ‘ reliable’ informant or coached a live person to conspire to provide probable cause for a search warrant. After receiving a ‘ tip’ from an anonymous ‘ cooperating source’ , with NO other info as to credibility or any other details, the narc within a week allegedly came up with a ‘ reliable ‘ source that had exactly the kind of details needed to provide the bare minimum for an affidavit.

    I know to a moral certainty that the story given by the narc ( or his supposed informant ) is impossible and untrue. The affidavit is so devoid of detail that it screams out as a phony..NO investigation done to verify the allegations..only a tip from an unreliable source and a perjured story..that is all they have.

    During the search, NO controlled substances were seized whatsoever, yet I was still charged with 2 felonies; manufacturing marijuana and maintaining a dwelling…the indictment states the date of offense as the date of the search, even though nothing was found and no drugs seized.

    I am demanding a suppression hearing and will fight it all the way..if all it takes is a rumor and a dirty cop willing to invent a source and attribute statements to such a person to get a warrant then we are all at risk. There is NO way possible for any person to truthfully testify that any of the allegations made are true, and I do not believe that the cop will risk his future on some rat he coached to provide back up for his perjurious claims.

    I assume that if the State cannot produce the supposed informer for examination by the court that it will all be dropped..I am claiming deliberate and false conduct on the part of the narc and we are entering motions to suppress and to compel the alleged ‘ reliable informant ‘ to be indentified and vetted so the narc’s story can be seen for what it is..a lie.

    Without the so called reliable informers statements the warrant would never have been issued, and even with the lies included the affidavit was so bare bones that it is a wonder it got signed at all. It is a shame that any cop that wants a warrant simply invents a ‘ reliable informant ‘ and supplies details attributed to the phony source that satisfies some judge that probable cause has been met…the burden is on the defendant to prove that it is all a lie, and that is not easy.

    The informants story contains only hearsay and no direct knowledge of anything…claiming that unknown ‘ others ‘ related certain info to him…the cop does not give any details of the informants reliability, just claiming that ‘ this source has been helpful in getting a warrant and felony charges in the past’. Thats it. No details, no direct contact with me, and the remainder is just hearsay supposedly related by the ‘ others’ to the source, with no indication as to whether the others imagined or guessed what they related or if I was supposed to have told them such…it is so suspicious and barren of details that it reeks of a set up…and it is.

    I am factually innocent of the charges, yet still have to go thru hell to get it dealt with..and I have NO confidence that the system will work properly. If there is any justice, the judge will insist on an in camera ex parte hearing wherein the informant will be brought in for detailed questioning by my counsel and the DA and the Court to establish whether or not the person exists and if the story given by the narc is the same as what is on the affidavit.

    Since no one can honestly back the cop up, either the cop must refuse to allow the informer to come forward, or he must rely on whatever bare details about me the cop could have supplied prior to the hearing…and not many cops will place their whole career and future in the hands of some rat they approached and coached..I believe the cop will simply say that he promised the rat he would never have to testify, and the matter will end then and there…fine with me.

    The time I spent in jail deprived on my prescribed meds before bonding out, as well as the cost and expense of all this, is not going to be returned to me…and now I know that the cops are totally willing to perjure themselves to check out a rumor…it is sickening and terrible to know that all it takes is a rumor and a crooked cop to get a warrant, and that judges will sign virtually anything placed before them by a cop, even when it contains so few details and NO corroborating evidence.

    The identity of the informer is critical to my assertion of perjury and unless he/she is compelled to come forward this travesty could play out..but I will not go down quietly..I will kick and scream all the way, because the truth is that I did none of the things alleged in the affidavit, at any time, anywhere, and I know it was all invented to get a search warrant under time constraints to see if the rumor was true.

    Remember, MOST cops will perjure themselves to ‘ get the job done’ and they have no compunctions about doing so…all is fair in the war on some drugs, it seems, and cops are so used to lying and deceiving that filing a perjurious warrant affidavit is nothing new and they believe that at worst a few cases get dropped, and at best the poor defendant who cannot fight such lies get convicted..sick sick sick.

    • Wow, so this super-sneaky rogue cop, who is smart enough to concoct a fake informant, perjure him or her self on a search warrant affidavit, get you arrested, make it past his immediate supervisor, a magistrate, a district court judge, a prosecutor, and a Grand Jury, was only able to come up with two class “I” felonies to pin on you?

      Sounds like a lazy cop; or, maybe you have been off your meds for longer than you realize, methinks.

      P.S. I love how you qualify your claim by stating you are, “factually,” innocent; as opposed to actually being innocent.

  3. I am actuakky, as well as factually, innocent. One does not have to be perfect to be innocent…lets say for arguments sake that theoretically the person we are referring to here is a user of cannabis, and at some unknown point in the past, well past any statutory limitations…may have cultivated small amounts for personal use,,,,NEVER for distribution or sales..never. Then, many months later, some emth head friend of a friend gets popped and tells any tale possible to get an easier time of it, regardless of truth…just hoping that she might be right..but lying all the way.

    Then the cop, not smart, but amoral, having gotten away with such conduct god knows how many times, ‘ gets the job done ‘ and invents a ‘ reliable informant’ with bare bone generalized allegations, virtually all hearsay, , and with NO corroboration…NONE…no indocators, nothing..but just enough to sway a complacent rubber stamping judge..common these days, an voila !! Warrant issued.

    Also, Mr. Prosecutor, I cannot find ONE case in all NC jurisprudence wherein someone was charged on convicted for manufacturing marijuana when NO marijuana was seized. None. Can you?

    90-95 (b)(2) lessens the status of all categories in 90-95(a)(1) to a misdemeanor, at the lowest level..the same as possession of under 14 grams. Less than 5 grams is not considered as an fofense under 90-95(a)(1) except for ” sell ‘, which requires remeneration, forbidden by that exact language in (b)(2). All other categories enjoy the benefit of (b)(2).

    But the bottom line is that I know that the cop cannot produce the informant, and no doubt would not dare try and fool a hearing with someone he coached…no way to impart enough details. No, the cop will just do the normal thing and say he promised the informant he would never have to appear or testify and thats that. I win the case , get the charges dismissed , and sadly the cop, perhaps shaken a bit at the close call, keeps on doing the ‘ dirty work ‘ in his ‘ war on drugs ‘.

    We allow cops to lie and deceive all day long and then act suprised when they continue deception at the point when it is most needed, to secure search warrants to verify tips , or to keep from losing a case..or to protect another cop.

    Prosecutors wink and nod at odds defying and ludicrous police statements all the time..unless someone has video tape these days most prosecutors will keep feeding the machine, ignoring such niceties as the Constitution in the belief that the accused is likely guilty of SOMETHING and unable to vavigate the system enough to suqeal about it…so let it go.

    Factually innocent should be just as good as actually innocent, and any prosecutor that thinks that being accused means guilt is naive or dishonest…you took an oath..if prosecutors sought JUSTICE and refused to tolerate ‘ testilying ‘ and cases lacking essential elements, the people might learn to respect the law, not just fear it.

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