Unmasking Confidential Informants: Exceptions to the Informer Privilege
Often fodder for Hollywood blockbusters such as Black Mass, Reservoir Dogs, and The Departed, the secrecy surrounding the identity of confidential informants has always captivated the public. Though the film world has undoubtedly glamorized the life of a confidential informant by adding a dramatic flair to their undercover lives, the plotlines focused on protecting the identity of confidential informants is rooted in reality. Preserving this protection of anonymity is important to cultivating the relationship between informants and law enforcement but is secondary to the need to provide accused citizens with fair trials.
The 2014 overhaul of the discovery processes in criminal cases in Texas broadened the information that must be made available to a defendant. This article follows the development and evolution of the Informer Privilege.
In Texas, two laws guide the privilege protecting a confidential informer’s identity – Texas Rule of Evidence 508 and Article 39.14 of the Texas Code of Criminal Procedure. Because of the recent legislative changes in the latter, the process for how these two laws work together is still being developed through case law. Here’s a brief overview of these two sections of criminal law and how courts determine whether or not a confidential informant’s identity may be disclosed.
Rule of Evidence Rule 508
Rule 508 of the Texas Rules of Evidence creates the “Informer’s Identity Privilege.” The general rule states that “The United States, a state, or a subdivision of either has a privilege to refuse to disclose a person’s identity if: (1) the person has furnished information to a law enforcement officer or a member of a legislative committee or its staff conducting an investigation of a possible violation of law; and (2) the information relates to or assists in the investigation.” The privilege is held by the representative of the public entity to which the informer furnished the information — for example, a detective working for your local police department or the prosecutor representing the State in a criminal matter.
Exception One to the Informer Privilege: Necessary to Determine Guilt/Innocence
As is typical of most Rules of Evidence, Rule 508 provides a number of exceptions to when the Identity of Informer Privilege may be invoked. Many of these exceptions apply almost exclusively in criminal cases.
First, in Rule 508 subsection (c)(2)(a), which makes an exception for testimony about the merits in a criminal case, the privilege does not apply “if the court finds a reasonable probability exists that the informer can give testimony necessary to a fair determination of guilt or innocence.” Here, the defendant bears the burden of making a “plausible showing” that the informant could provide testimony that is necessary to make a fair determination of guilt. A “plausible showing” does not require concrete evidence that the informant can provide this type of testimony. However, “the plausible showing” must include how the informant’s information would significantly aid the defense and be more than mere speculation or conjecture that the informant’s testimony is relevant. If the defendant makes a plausible showing but the state still refuses to reveal the informant’s identity, the court must conduct a hearing. The hearing is held in camera – Latin for ‘in chambers’ – to maintain protection of the informer’s identity until a decision is made on disclosure. No other parties or counsel may attend this hearing – it is held with the State and trial judge only. During the in camera hearing, the State is required to demonstrate facts as to whether the informant can provide testimony on the merits. If the court determines from the information divulged in the hearing that the informant’s testimony is necessary to a fair determination of guilt or innocence, the State must disclose the informer’s identity. This disclosure does not have to be made in court – the State is only required to disclose the identity to the accused himself.
The issue of whether an informant’s testimony meets this exception has been a hot topic in Texas courts. Prior to the inception of Rule 508, the courts carved out three specific circumstances in which an informant’s testimony on the merits required disclosure: (1) if the informant participated in the offense, (2) if the informant was present during or at the time of the arrest or offense, and (3) if the informant was otherwise shown to be a material witness, either to the transaction or as to whether the defendant knowingly committed the act charged. Once the Texas Rules of Evidence were enacted, courts continued to use these exceptions as a guideline for their rulings. However, in 1991, the Court of Criminal Appeals expanded the circumstances mandating disclosure beyond these three exceptions in Bodin v. State. In this case, a defendant wanted to know if a man who had left drugs in his home was a confidential informant. He argued that he needed this knowledge in order to argue the defense of entrapment. The trial court rejected Bodin’s argument. When reviewed by the Criminal Court of Appeals, the judgment against Bodin was reversed, stating the trial court erred when it by looking only to whether one of the three pre-rule situations applied.
Because Bodin made it clear that the pre-rule exceptions are in no way an exhaustive list, courts now determine on a case-by-case basis the circumstances that require disclosure of an informant’s identity.
Ultimately, if the public entity elects not to disclose the confidential informants identity after the court order, the rule mandates that on the defendant’s motion, the court must dismiss the charges to which the testimony would relate, or on its own motion, the court may dismiss the charges to which the testimony would relate.
Exception Two to the Informer Privilege: Credibility of Informant
The second criminal based exception to the informer identity privilege is found in subsection (c)(3) of Rule 508 and pertains to the credibility and reliability of the informant if the informer was relied upon to establish the means of obtaining evidence.
Here, the court may order disclosure of an informer’s identity if: (i) information from an informer is relied on to establish the legality of the means by which evidence was obtained; and (ii) the court is not satisfied that the information was received from an informer reasonably believed to be reliable or credible.
This exception is most commonly raised when there is a question as to the credibility or reliability of an informant who has provided information used to establish probable cause for a search or seizure.
In applying Texas Rule of Evidence 508(c)(3), the test is whether the judge is satisfied that the informant was reasonably believed to be reliable or credible.
Code of Criminal Procedure Article 39.14
For years, Rule 508 served as the comprehensive guideline for the informant identity privilege and the procedures for disclosure. However, on January 1, 2014, the revamped Article 39.14 of the Texas Code of Criminal Procedure went into effect. In the wake of numerous exonerations based on evidence held by the State but never revealed to the defense, the Legislature broadened Article 39.14 so that the State is now required to disclose any information that is favorable to the defense, whether exculpatory, impeaching, or mitigating.
The relevant sections of Article 39.14 in relation to the disclosure or protection of a confidential informant’s identity are found in subsection (a) and subsection (c). In 39.14(a), the law provides that “as soon as practicable after receiving a timely request from the defendant, the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.” In short, unless evidence is privileged, it must be disclosed to the defense.
In addition to this exception for privileged information, 39.14 (c) allows the State to redact privileged portions of materials. The State must notify the defense that information has been withheld. This method is often illustrated in relation to confidential informants, where the identity of the informant is redacted, while the substance of whatever information he has supplied is provided to the defense.
Considering Article 39.14 in its entirety, the Legislature created a system in which both ends of justice are served, by providing defendants with a transparent process of obtaining discoverable materials while maintaining protection for confidential informant information. Recent case law shows the interaction between Rule 508 and Article 39.14 in criminal cases.
For instance, in Hart v. State, Roosevelt Hart appealed a drug conviction on the grounds that the trial court abused its discretion when it refused to order disclosure of a confidential informants identity. Hart contended that the disclosure of the informant’s identity was required under the newly revised Article 39.14 of the TCCP. While the court dismissed this argument on procedural grounds, citing that Hart did not preserve the argument for appeal, the case brings to light the very real possibility that in the near future courts could construe 39.14’s legislative intent and statutory construction as requiring disclosure of a confidential informant’s identity in spite of the Rule 508 privilege.
On the other hand, In re State rejected the argument explored in Hart, while carving out a specific situation in which the Rule 508 privilege would not apply. In State, the court explored a similar claim where a defendant, Bass, contended that a recording of a drug transaction of a confidential informant was required to be produced per 39.14. The State argued that the recording was protected by the Rule 508 privilege. Bass argued that 39.14 required the State to produce recorded statements of the witness notwithstanding the privilege set forth in Rule 508. The Court of Appeals disagreed with this, citing the plain language of the caveat to 39.14(a), requiring production of evidence “not otherwise privileged.” Importantly, the Court went on to hold that “if a privilege applies, Article 39.14 does not apply and discovery will only be required if it is exculpatory.” In doing so, it follows that Article 39.14 broadens Rule 508 where the disclosure would reveal exculpatory materials.
While these cases give us some insight into how courts are reconciling the privilege set forth in the Texas Rules of Evidence with the broadened discovery rules set forth in the Texas Code of Criminal Procedure, time will certainly lend its hand in developing how these two areas of the law will be interpreted together. As more cases reach the appellate level challenging issues regarding confidential informer identity disclosures, the application of these laws will continue to develop.
Also published on Medium.