Confidential Informants

A confidential informant, more commonly referred to as a snitch, is a great investigative tool for law enforcement. Confidential informants can be used in all types of investigations, but they are, however, more commonly used in drug offenses. For example, confidential informants are sometimes hired to purchase drugs from an alleged defendant. It should be noted that the services of a confidential informant are not always free. Confidential informants, can receive benefits such as avoidance of charges and financial incentives for their testimony or work with the police. But what impact can a confidential informant have on a defendant? Prior to exploring this question, some definitions must first be explained.
According to the dictionary used by attorneys, a confidential source (informant) is “someone who provides information to a law enforcement agency or to a journalist on the express or implied guarantee of anonymity.” Because a defendant does not know the identity of a confidential informant, the defendant his hindered from confronting this witness at trial, as provided under the Sixth Amendment of the United States Constitution. However, under the policy that some confidential informants fear for their safety, the identity of a confidential informant is what attorneys refer to as privileged information. Privileged information, as a general rule, cannot be revealed to the opposing party. As it pertains to Georgia, the identity of a confidential informant is considered secrets of the state, and thus privileged information.
Revealing the identity of a confidential informant depends on the type of informer he or she is There are three types of informers: participants, witnesses, and tipsters. The difference between the three are as simple as their titles. As a general rule, the identity of an informer-tipster cannot be revealed under any circumstance. Informer-participants or informer-witnesses, generally have exceptions to the rule of privilege. Most states, like Georgia common (or judge-made) law, provide that “the identity of an informer-witness or informer-participant must be disclosed whenever the informer’s testimony may be relevant and helpful to the accused’s defense.”
In order to reveal the identity of an informant, a defendant must motion (or move) the court to do so, either before or during trial. In determining whether revealing the identity of a confidential informant is permissible comes from Roviaro v. United States, a 1957 Supreme Court case. In this case, the Supreme Court ruled that the identity of a confidential, although privileged was limited and could be revealed provided that the contents of the informants communication is relevant and helpful to the defense or essential for fundamental fairness.” The Supreme Court went further to hold that the decision to reveal the identity of an informant requires “balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense.” To illustrate, a defendant must show that the identity of the confidential informant is necessary to prove their guilt or innocence in order to have a chance at succeeding on this motion. However, as it pertains to Georgia, a pretrial motion to reveal the identity of a confidential hearing requires a two-step process. First, the trial court must determine the type of informer and if the information is material to the guilt or punishment of the defendant; whether the testimony of the prosecution and defense are in conflict; and if the informer is the only available witness to support or contradict the testimony. If this is satisfied, then an in camera hearing of the informer’s testimony must be conducted, in which the trial court will use the balancing test of Roviaro. It should be noted however, that in Georgia, Roviaro typically does not apply when the informant(s) will testify at trial.
Learning the identity of a confidential informant can be a crucial step in trial preparation for a criminal case. As mentioned above, the identity of a confidential informant is generally privileged information, and thus, incapable of being shared. Even with the exceptions available to defendants in ascertaining the identity of a confidential informant, an experienced defense attorney, can make this process a lot easier. Allow the experienced criminal defense attorneys at Bixon Law to assist you with your criminal case. With knowledge of relevant case law and statutes, our team of attorneys are here, and ready to assist you in all of your criminal matters.