Piercing the veil of informant confidentiality: the role of in camera hearings in the Roviaro determination.

AuthorPerez, Zathrina Zasell Gutierrez


In 1988, Emanual George DeVose was charged with the delivery of a controlled substance and tried before a jury in an Arkansas state trial court. (1) Robert Thomas, an undercover officer, testified to the following: On May 21 of the same year, he and a confidential informant sat in an undercover vehicle in an area known for drug transactions. (2) The informant called an individual known as "Curtis Jones" to the passenger side of the car, and Officer Thomas purchased one rock of cocaine from Curtis Jones. (3) An information was filed, charging "Curtis Jones" with the May 21 delivery of a controlled substance. (4) Officer Thomas made a police report, describing Curtis Jones as between 6' 2" and 6' 4" tall. (5)

On June 3, DeVose was in custody on charges unrelated to the May 21 drug transaction. (6) According to DeVose, an officer who was not Officer Thomas asked him if he was Curtis Jones. (7) Although DeVose responded that he was not, the officer expressed disbelief at the answer. (8) A new information was filed, charging "Emanuel [sic] George DeVose, a/k/a Curtis Jones" with the May 21 drug transaction. (9) Neither Officer Thomas nor the informant was called to identify DeVose as "Curtis Jones" before trial. (10) No police records connected DeVose with the name "Curtis Jones" and DeVose had no record of drug offenses at the time. (11)

Prior to trial, the defense received from the prosecution, pursuant to a court discovery order, the file on the May 21 drug transaction; the prosecutor's file revealed that an informant had been involved in the charged offense. (12) The defense moved for disclosure of the informant. (13) In the motion for disclosure, the defense argued that disclosure of the identity of the informant was necessary "to enable the defendant to properly present his defense at the trial of this matter." (14) The prosecution did not respond to the motion and no hearing was conducted on the motion, even though the defense raised the issue informally prior to trial. (15)

During trial, the prosecution did not present the informant as a witness, but rather relied on the testimony of Officer Thomas and his in-court identification of DeVose as the "Curtis Jones" from whom he bought the cocaine rock. (16) Officer Thomas admitted that his police report stated that Curtis Jones was between 6' 2" and 6' 4" tall while DeVose was approximately 6' 9" tall. (17) He also admitted that the individual from whom he bought the cocaine rock had longer, straighter hair than DeVose and that his police report made no mention of Curtis Jones's eyes while DeVose's eyes were large, "bug eyes." (18) Nonetheless, Officer Thomas insisted that DeVose was the "Curtis Jones" who sold him the cocaine rock. (19)

After the jury in the case had retired to deliberate, the defense again raised the issue of the motion for disclosure of the informant. (20) The trial court, however, denied the motion, relying on the assistant prosecutor's representation that "the confidential informer had no exculpatory information that he could have given." (21) DeVose subsequently was found guilty of delivery of a controlled substance and sentenced as a habitual offender to twenty-seven years of imprisonment. (22)

After unsuccessfully appealing his conviction to the state court of appeals (23) and unsuccessfully seeking postconviction relief from the state supreme court, (24) DeVose filed a petition for writ of habeas corpus in federal district Court. (25) DeVose argued, among other things, that the state trial court erred when it failed to order disclosure of the confidential informant. (26)

This time, the district court conducted two hearings during which the informant was called to testify outside the presence of DeVose. (27) The informant initially testified that he and Officer Thomas had bought cocaine on May 21, 1998 from "Curtis Jones," but later said that they "didn't make no buy-to [his] knowledge off no Curtis Jones" but from DeVose. (28) The informant also testified that he never told Officer Thomas that the individual from whom they bought the cocaine rock was "Curtis Jones" but rather, he told Officer Thomas that the individual's name was "Sleepy." (29)

Seven years after DeVose was convicted, the federal district court issued a writ of habeas corpus, and the Eighth Circuit affirmed. (30) The Eighth Circuit pointed to the informant's "tenuous" testimony with respect to who was involved in the May 21 drug transaction, the inconsistencies in Officer Thomas' identification of DeVose, and other evidence strongly suggesting that Officer Thomas' credibility was suspect. (31)

Informants play a significant role in law enforcement. Law enforcement agencies rely on informants to act as their "eyes and ears." (32) Informants are often recruited and managed in secret, enabling them to serve as a police proxy in "dangerous and privileged places where badges cannot go." (33) Such confidential informants have become a particularly important law enforcement tool in the government's "War on Drugs," where there is usually no complaining witness. (34) In such cases, law enforcement practitioners claim that informants provide the following benefits:

(1) information that opens probes and starts investigations; (2) information that is more accurate, efficient, and comprehensive than that available from other sources; (3) corroborative information; (4) the introduction of undercover personnel to persons, groups, and organizations involved in crime; (5) the consummation of illegal purchases; (6) a communications link between criminal groups and police; and (7) the timely receipt of information to prevent crimes. (35) As DeVose's story demonstrates, however, neither informants nor their handlers (36) can always be relied upon, and law enforcement agencies and prosecutors do not always keep either one in check. Moreover, no other checks on the informant-handler relationship exist because courts have developed a doctrine that shrouds the relationship in a veil of secrecy: the informant's privilege. (37) The privilege bestows on the government the prerogative to prevent anyone from discovering or using at trial information tending to reveal the identity of the informant. (38) In doing so, the government becomes the final arbiter on the propriety of the informant-handler relationship. (39)

The persisting problems of informant misconduct and mishandling, however, suggest that the government alone cannot adequately regulate the informant-handler relationship. Criticism of the government's current informant system is widespread both within and without legal scholarship. (40) Instances of overturned convictions or dropped charges based on the discovery of informant deception or handler misconduct are continuously coming to light. (41) Internal efforts to regulate the informant-handler relationship are inadequate to prevent these abuses. (42)

Law enforcement agencies use informants to obtain information to support probable cause for a warrant as well as information tending to prove guilt at trial. (43) This Note focuses on a subset of this latter category--informants who furnish information that relates to the guilt/innocence phase but do not testify at trial. (44) In Roviaro v. United States, (45) the Supreme Court established a framework for defeating the privilege when applied to this latter category of informants. (46) While the legal scholarship on informants thus far has advanced a number of possible solutions to informant deception and handler abuse, few consider modifying the existing Roviaro framework. (47) This Note makes such a proposition.

Under Roviaro, as presently interpreted by the federal circuits, courts will allow a defendant to defeat the privilege only if she can make what is essentially an impossible showing: prove that the informant will have something material to say. (48) This Note argues that this narrow interpretation of Roviaro exception to the privilege insulates the informant-handler relationship, undermines the benefits of the adversarial system, is inconsistent with the language and spirit of the Roviaro court opinion, and withdraws some of the constitutional protections afforded to criminal defendants. (49) It then proposes modifying the Roviaro framework to provide defendants with a procedural tool to facilitate their ability to make the Roviaro showing: an in camera heating. (50)


    1. The "Informant's" Privilege

      An "informant" is a person who "has furnished [to a law enforcement agency] information relating to or assisting in an investigation of a possible violation of law." (51) As used in this Note, the term does not include ordinary citizens but refers to individuals who have criminal backgrounds or connections and who receive compensation for their services. (52) The government compensates an informant either by cash payment or through a promise of leniency regarding charges pending against the informant. (53)

      Although courts generally cite Roviaro v. United States (54) for the federal common law articulation of the informant's privilege, the privilege existed long before Roviaro. (55) The phrase "informant's privilege" is a misnomer. The privilege is held not by the informant, but by the government; it may be invoked and waived only by the government or representatives of the government. (56)

      In criminal proceedings, the informant's privilege bestows on the government the prerogative to prevent anyone, including the defense, from discovering information relating to who the informant is. (57) Such information includes not only the informant's name but also facts tending to reveal the informant's identity. (58) The name and location of an informant is valuable information to the defense. The defense needs this information to locate and interview the informant, discover any exculpatory information the informant may have, or obtain information that leads to the discovery...

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