If you are charged with a crime in California, and the case against you involves police use of an anonymous informant, you may want to consider filing a motion to compel the government to identify the informant.1
Who are informants, and how are they used?
“Informants” (also known as “confidential informants,” “informers,” “snitches,” and “narcs”) are individuals who confidentially supply information about the suspected criminal activity to the police.2
The term “informants” includes both:
- Citizen-informants who contact the police after witnessing or otherwise learning about a crime;4 and
- Police confidential informants who work closely and systematically with law enforcement to gather evidence on crimes, usually in return for either payment or lenient treatment in their own criminal cases.
When does the government have the right to keep an informant’s identity secret?
Under California evidence law, prosecutors have a privilege to refuse to identify—and to prevent other people from identifying—a person who has furnished information to the government about criminal activity.5
In order for this privilege to apply, the informant must have given information in confidence to one of the following people:
- A law enforcement officer;
- A representative of an administrative agency that is responsible for enforcing the law; or
- Any third party who is supposed to transmit the information to one of the above individuals.6
Example: Officer Hughes is a detective investigating a high-profile bank robbery.
In the course of his investigation, he comes across the Facebook page of a woman named Katrina. In one of her public postings, Katrina claims that another woman named Amy was an accomplice to the robbery and provides some details about how she knows this.
If Amy is arrested and charged in the robbery, the prosecution will not have the privilege to keep Karina’s identity secret from Amy and her lawyers—because Karina did not provide information to law enforcement in confidence.
The government’s privilege to keep the identity of a confidential informant secret is absolute—meaning, there are no exceptions to it—if a specific federal or state law says that informers’ identities can’t be disclosed in this type of case.7
Example: Rachel is charged with child endangerment for allegedly neglecting her child. She finds out that the charges against her originated with a report to authorities made by a so-called “mandated reporter” under California’s Child Abuse and Neglect Reporting Act.
That act provides that the identity of all mandated reporters must be kept confidential.8 So Rachel will not be able to file a successful motion to compel the disclosure of the reporter’s identity—no matter how important that information might be to her case.
Otherwise, though, the government only has a qualified privilege to keep informers’ identities secret.
This means that the privilege applies only if the necessity for preserving the confidentiality of the informant’s identity outweighs the necessity for disclosure in the interest of justice.9
When can a defendant compel the government to disclose a confidential informant?
According to San Jose criminal defense attorney Reve Bautista10:
“The fact that the government’s privilege not to reveal the identity of an informant is usually ‘qualified’ rather than absolute means that defendants can sometimes persuade a judge to compel the prosecution to disclose this information.”
Specifically, the informant’s identity must be disclosed if there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.11
In practice, this means that the identity of the informant may need to be disclosed if s/he is a material witness on the issue of the defendant’s guilt or innocence.12
Example: A confidential informant (“CI”) tells a police officer named Bruce that he knows a drug dealer named Rudy looking to sell some methamphetamine. The CI sets up an appointment with Rudy for Bruce to buy meth from him in an undercover “sting” operation.
The CI arrives at Rudy’s apartment before Bruce does and helps to facilitate the transaction. He is present when Rudy allegedly sells the meth to Bruce.
Rudy is then charged with sale of a controlled substance—but he denies that the transaction ever took place.
Rudy and his attorney should consider filing a motion to compel disclosure of the confidential informant. The CI was present at the alleged scene of the crime. His testimony therefore might have a material bearing on the question of Rudy’s guilt or innocence, and Rudy might want to call him to testify at his trial.13
It is important to note that the government may not be compelled to disclose an informant’s identity when the defendant is challenging the validity of a search warrant that was issued based on statements by the informant.14
What is the procedure for filing a motion to disclose an informant’s identity?
If your criminal case involves a confidential informant who may be a material witness on your guilt or innocence, your criminal defense attorney should file a motion for disclosure of the CI, either as part of the pretrial process or during your trial.
If you do not request the revelation of the CI’s identity at your trial, you will not then be able to do so for the first time in your criminal appeal.15
In response to your motion, the prosecutor may decide to simply reveal the name of the informant. But if s/he does not choose to do so, then s/he may request an “in camera” hearing with the judge. You and your defense lawyer will not be present at this hearing.16
At the hearing, the prosecutor will present evidence to the judge that will help him/her determine whether the informant might be a material witness regarding your guilt or innocence.17
If the judge determines that disclosure of the informant’s identity is necessary to guarantee you a fair trial, then the prosecutor must either reveal that information—OR suffer some kind of adverse consequence in your case, such as:
- Having any testimony by the CI stricken from the record;
- Receiving an adverse finding on an issue in the case; or
- Having the charges dismissed altogether.18
In some cases, prosecutors will choose to have the charges dismissed rather than reveal the identity of a valuable CI with whom the police would like to keep working in the future.
Fur further assistance…
For questions about California motions to compel the disclosure of a confidential informant, or to discuss your case confidentially with one of our attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
1 Evidence Code 1042 EC – Motions to compel disclosure of informant’s identity. (“(a) Except where disclosure is forbidden by an act of the Congress of the United States, if a claim of privilege under this article by the state or a public entity in this state is sustained in a criminal proceeding, the presiding officer shall make such order or finding of fact adverse to the public entity bringing the proceeding as is required by law upon any issue in the proceeding to which the privileged information is material. (b) Notwithstanding subdivision (a), where a search is made pursuant to a warrant valid on its face, the public entity bringing a criminal proceeding is not required to reveal to the defendant official information or the identity of an informer in order to establish the legality of the search or the admissibility of any evidence obtained as a result of it. (c) Notwithstanding subdivision (a), in any preliminary hearing, criminal trial, or other criminal proceeding, any otherwise admissible evidence of information communicated to a peace officer by a confidential informant, who is not a material witness to the guilt or innocence of the accused of the offense charged, is admissible on the issue of reasonable cause to make an arrest or search without requiring that the name or identity of the informant be disclosed if the judge or magistrate is satisfied, based upon evidence produced in open court, out of the presence of the jury, that such information was received from a reliable informant and in his discretion does not require such disclosure. (d) When, in any such criminal proceeding, a party demands disclosure of the identity of the informant on the ground the informant is a material witness on the issue of guilt, the court shall conduct a hearing at which all parties may present evidence on the issue of disclosure. Such hearing shall be conducted outside the presence of the jury, if any. During the hearing, if the privilege provided for in Section 1041 is claimed by a person authorized to do so or if a person who is authorized to claim such privilege refuses to answer any question on the ground that the answer would tend to disclose the identity of the informant, the prosecuting attorney may request that the court hold an in camera hearing. If such a request is made, the court shall hold such a hearing outside the presence of the defendant and his counsel. At the in camera hearing, the prosecution may offer evidence which would tend to disclose or which discloses the identity of the informant to aid the court in its determination whether there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial. A reporter shall be present at the in camera hearing. Any transcription of the proceedings at the in camera hearing, as well as any physical evidence presented at the hearing, shall be ordered sealed by the court, and only a court may have access to its contents. The court shall not order disclosure, nor strike the testimony of the witness who invokes the privilege, nor dismiss the criminal proceeding, if the party offering the witness refuses to disclose the identity of the informant, unless, based upon the evidence presented at the hearing held in the presence of the defendant and his counsel and the evidence presented at the in camera hearing, the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.”)
2 Black’s Law Dictionary, 10th ed. 2014, informant. (“Someone who informs against another; esp., one who confidentially supplies information to the police about a crime, sometimes in exchange for a reward or special treatment. — Also termed informer; feigned accomplice.”)
3 See, e.g., Lieutenant Stephen B. Johnson, LA County Sheriff’s Department, “Future Policies Regarding the Use of Confidential Narcotic Informants,” Nov. 2001, available at http://lib.post.ca.gov/lib-documents/cc/31-Johnson-j.pdf, at 2 (stating that as many as 92% of federal narcotics cases arise from search warrants issued on the basis of informant statements).
4 Black’s Law Dictionary, 10th ed. 2014, informant. (“citizen-informant (1951) A witness who, without expecting payment and with the public good in mind, comes forward and volunteers information to the police or other authorities.”)
5 Evidence Code 1041 EC – Privilege for identity of informer. (“(a) Except as provided in this section, a public entity has a privilege to refuse to disclose the identity of a person who has furnished information as provided in subdivision (b) purporting to disclose a violation of a law of the United States or of this state or of a public entity in this state, and to prevent another from disclosing the person’s identity, if the privilege is claimed by a person authorized by the public entity to do so and either of the following apply: (1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state. (2) Disclosure of the identity of the informer is against the public interest because the necessity for preserving the confidentiality of his or her identity outweighs the necessity for disclosure in the interest of justice. The privilege shall not be claimed under this paragraph if a person authorized to do so has consented that the identity of the informer be disclosed in the proceeding. In determining whether disclosure of the identity of the informer is against the public interest, the interest of the public entity as a party in the outcome of the proceeding shall not be considered. (b) The privilege described in this section applies only if the information is furnished in confidence by the informer to any of the following: (1) A law enforcement officer. (2) A representative of an administrative agency charged with the administration or enforcement of the law alleged to be violated. (3) Any person for the purpose of transmittal to a person listed in paragraph (1) or (2). As used in this paragraph, “person” includes a volunteer or employee of a crime stopper organization. (c) The privilege described in this section shall not be construed to prevent the informer from disclosing his or her identity. (d) As used in this section, “crime stopper organization” means a private, nonprofit organization that accepts and expends donations used to reward persons who report to the organization information concerning alleged criminal activity, and forwards the information to the appropriate law enforcement agency.”)
8 See Penal Code 11167 PC – Report; contents; confidentiality of identity of persons reporting [no disclosure of informants under child abuse and neglect mandated reporting law].
9 Evidence Code 1041 EC – Privilege for identity of informer, endnote 5, above.
10 San Jose criminal defense attorney Reve Bautista has over two decades of experience as a prosecutor, first at the office of the Contra Costa District Attorney and then at the San Francisco DA’s Office. She conducted over 100 jury trials and other proceedings and is an expert at the variety of motions and strategies that can be used to help a defendant’s case, including motions to compel the disclosure of confidential informants.
11 Evidence Code 1041 EC – Privilege for identity of informer, endnote 5, above.
12 Evidence Code 1042 EC – Motions to compel disclosure of informant’s identity, endnote 1, above.
13 Based on People v. Ruiz (1992) 9 Cal.App.4th 1485.
14 Evidence Code 1042 EC – Motions to compel disclosure of informant’s identity, endnote 1, above.
15 People v. Postell (1959) 170 Cal.App.2d 31, 34. (“We hold that appellant may not for the first time on this appeal raise the objection of nondisclosure of the identity of the informer, not having ever requested his name or properly interposed the appropriate objection in the court below.”)
16 Evidence Code 1042 EC – Motions to compel disclosure of informant’s identity, endnote 1, above.