Confidential Informants-to Disclose or Not to Disclose
| Publication year | 1990 |
| Pages | 225 |
| Citation | Vol. 02 No. 1990 Pg. 225 |
1990, February, Pg. 225. Confidential Informants-To Disclose or Not To Disclose
Informants often are needed to detect and prosecute criminal conduct. Ensuring their confidentiality often is necessary to obtain their participation.(fn1) Nevertheless, defendants must be afforded the right to confront their accusers and to defend themselves adequately.
In 1957, the U.S. Supreme Court established a balancing test, weighing the "public interest in protecting the flow of information against the individual's right to prepare his defense."(fn2) The Colorado Supreme Court recently announced a number of opinions discussing when disclosure of the informant's identity is required by the police. This article discusses Colorado law governing when the prosecution must disclose the identity of and produce the confidential informant.
The informer privilege often is raised when the defendant seeks to suppress evidence by attacking the affidavit filed with the court which supported the arrest or search warrant. The defendant bears the initial burden of making a minimal affirmative showing of a reasonable basis in fact to believe that the informant will provide information essential to the merits of the defendant's motion to suppress.(fn3)
The defendant must establish a reasonable basis in fact to believe the following: (1) the informant does not exist; (2) the informant did not give the police the information on which they purportedly relied;(fn4) or (3) the information in the affidavit is false. To meet this initial burden, the defendant specifically must challenge the accuracy of statements in the affidavit. The defendant's motion to suppress must:
1) be supported by one or more affidavits reflecting a good faith basis for the challenge; and
2) contain a specification of the precise statements challenged.(fn5)
The hearing on such a challenge is referred to as a veracity hearing. The above requirements all must be met before a veracity hearing will be held.
Affidavits filed by the defendant must be more than conclusory and more than a mere reiteration of "not guilty" to support disclosure of the identity of the informant.(fn6) To mandate a veracity hearing, several standards must be met:
1. The challenger's attack must be supported by more than a mere desire to cross-examine.
2. There must be allegations of deliberate falsehood or of reckless disregard for truth. These allegations must be accompanied by an offer of proof.
3. The allegations should point out specifically the portion of the affidavit that is claimed to be false. They should be accompanied by a statement of supporting reasons.
4. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished or their absence satisfactorily explained.(fn7)
Arguments of counsel will not qualify as evidence in this situation and will not meet the above standards. In People v. Bueno,(fn8) defense counsel argued extensively that disclosure was required due to the lack of credibility of the police detective, who had spoken with the informant. Counsel had investigated the lack of credibility the detective had with trial judges, and the trial court relied on counsel's assertions. The Supreme Court reversed, holding that, although the credibility of the affiant was very relevant, this lack of credibility was not established by testimony, stipulation or affidavit or otherwise properly developed for the record.(fn9)
If affidavits submitted by the defense are inadequate or the showing made by the defendant in support of disclosure is inadequate, it is incumbent on the prosecution to object to disclosure.(fn10)
At the veracity hearing, the court must determine if there are erroneous statements in the affidavit and, if so, the source of those errors. The trial court must make specific findings as to why the false statements are in the affidavit in order to determine the appropriate sanction. If the source of the erroneous statement in the affidavit is intentional falsehood or reckless disregard for the...
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