Legislation

It is an exciting time for criminal informant law. Nearly half of all states, as well as the federal government, are examining and/or changing the law pertaining to informant use. Over the past decade there have been studies, commissions, hearings, and legislative proposals aimed at improving the reliability and accountability of informant policies. Below is a partial list of jurisdictions and their efforts, with links to statutes, bills, reports, and other legislative materials where available. Additional background is available under LEGISLATION.

For those interested in reforming informant law in your jurisdiction, the Model Bill contains legislative proposals on a wide range of issues, from reliability hearings to protections for juveniles.

Model Legislation & Policy

• Comprehensive Informant Legislation: A Model Bill
• International Assoc. of Chiefs of Police Model Confidential Informant Policy
• American Legislative Exchange Council (ALEC) Model Jailhouse Informant Regulations

U.S./Federal Legislation & Materials

• 2017 Confidential Informant Accountability Act, H.R. 1857 (would require all federal investigative agencies to report serious crimes committed by their informants to Congress)
• No More Tulias: Drug Law Enforcement Evidentiary Standards Improvement Act of 2011, H.R. 231, 112th Cong. (would require corroboration for drug informants and undercover officers, as well as training and data collection regarding federally funded drug task forces).
• State Witness Protection Act of 2010, S. 3017, 111th Cong. (would make it a federal crime to intimidate or tamper with a witness)
• U.S. House of Representatives, Judiciary Committee, Joint Oversight Hearing on Law Enforcement Confidential Informant Practices (Dec. 2007)
• U.S. Attorney Guidelines Regarding the Use of FBI Confidential Human Sources (2006)
• The FBI’s Compliance with the Attorney General’s Investigative Guidelines, U.S. Dep’t of Justice Office of the Inspector General (2005)
• Law Enforcement Cooperation Act of 2005, H.R. 4132, 109th Cong. (would require FBI agents to report their informants’ criminal activities to prosecutors)
• Congressional Report: H. Rpt. 108-414: Everything Secret Degenerates: The FBI’s Use of Murderers as Informants, U.S. House of Representatives, Committee on Government Reform (2004)

California

• Cal. Pen. Code § 1127a (requiring disclosure of in-custody informant benefits and cautionary jury instructions)
• Cal. Penal Code 1111.5  (requiring corroboration for jailhouse informant testimony) 
• “Chad’s Law,” Cal. Penal Code 701.5 (prohibiting the use of informants age 12 and under and restricting the use of minor informants under the age of 18)
• Los Angeles County District Attorney’s Office Jailhouse Informant Policy (2005)

Colorado

• House Bill 20-1102 (2020) (would require state-wide tracking of jailhouse witness informants; enhanced disclosures; reliability hearings in murder and rape cases; cautionary jury instructions; notice to victims)

Connecticut

• Conn. Gen. Stat. §§ 51-286k, 54-86o, 54-86p (requiring state-wide tracking of jailhouse informants, enhanced disclosures, and reliability hearings in murder and rape cases) (effective Oct. 2019)

Florida

• “Rachel’s Law,” Florida Stat. Ann. 914.28 (requiring police to advise informants of certain rights and to maintain certain policies with respect to the recruitment and use of informants)
• Florida Rule of Criminal Procedure 3.220(b)(1)(M) (requiring disclosure regarding informant witnesses)

Illinois

• Ill. Comp. Stat. ch. 725, s. 5/115-21 (requiring reliability hearings and heightened discovery for jailhouse informants)

Kansas

• House Bill 2544 (2020) (would require state-wide tracking of jailhouse witness informants; enhanced disclosures; reliability hearings in murder and rape cases; cautionary jury instructions; notice to victims)

Maryland

• Md. Code Ann., Cts. & Jud. Proc. § 10-924 (2020) (requires state tracking of in-custody informants, enhanced disclosure, and victim notification)
• Maryland Code, Crim. Law 9-302 & Cts. and Judicial Proceedings 10-901 (increased penalties for witness intimidation and hearsay rules permitting statements from absent witnesses)

Massachusetts

• Bill S. 832 (requiring tracking of testifying informants, enhanced disclosures, and reliability hearings) (2020)

Minnesota

• Matthew’s Law, Minn. Stat. Ann. § 626.8476 (requires the promulgation of model law enforcement policies governing all confidential informants including tracking, training, and supervision. Bans the use of juvenile informants to make controlled drug buys without parental consent. Requires consideration of an informant’s mental illness, substance abuse, or other disability)
• Jailhouse Witnesses, HF 63 (enacted June 30, 2021) (requires tracking of informant use and benefits in a state-wide database; enhanced disclosures; and victim notification)

Mississippi

• Mississippi Confidential Informant Act, House Bill 750 (2017) (comprehensive reform proposal pertaining to all compensated informants including enhanced data collection and disclosure; written informant agreements and warnings including the opportunity to consult with counsel; reliability hearings; law enforcement reports on informant criminality; a ban on juvenile informants and recruiting college students as informants; controls on the use of informants with substance abuse histories)

Montana

• SB0156 (2019) (would require enhanced disclosures, pre-trial reliability hearings, and cautionary jury instructions)
• SB249 (2017) (requiring disclosure, tracking, electronic recording, and reliability hearings)

Nebraska

• Neb. Code 29-4702 et seq. (requiring enhancing disclosure, jailhouse informant tracking and victim notification)

New Jersey

• Directive 2020-11, Attorney General Directive regarding best practices for jailhouse informant use including data collection, disclosures, and supervisory approvals
• Attorney General Guidelines on the Use of Juveniles as Informants
• New Jersey Prosecutor’s Manual Policy on the Use of Informants

New York

• Bill A02906-2015 (would require corroboration of informant testimony, heightened discovery, and additional safeguards); see also Senate Bill S03876

North Carolina

• Senate Bill 418 (2019) (in-custody informants would require corroboration, reliability hearings, subject to a rebuttable presumption of unreliability; also would require notice to victims)

North Dakota

• “Andrew’s Law,” N.D. Code 29-29.5 (banning use of juvenile informants age 15 or younger; prohibiting campus police from using student informants; requiring written informant agreements; mandating police training; mandating special procedures in the event of an informant’s death)

Ohio

• Unanimous recommendation by the Joint Task Force to Review the Administration of Ohio’s Death Penalty, April 2014 (would ban imposition of the death penalty in cases where the state relies on uncorroborated jailhouse informant testimony)

Oklahoma

• 22 Okl. St. Ann. § 2002(A)(4) (2020) (requires statewide tracking and enhanced disclosures)

Oregon

• Deschutes County Sheriff’s Office Confidential Informant Policy

Pennsylvania

• S.B. 873 (2019) (would require enhanced disclosures and reliability hearings for jailhouse informants)
• H.B. 793 (2015) (provides witness protection measures for confidential informants; requires police to provide potential informants with opportunity to consult with counsel; requires parental consent for juvenile informants; bars use of informants with chronic substance abuse problems)

South Carolina

• H. 3264 (2017) (would prohibit any law enforcement agency from using any participant in a drug court proceeding as a confidential informant)

Texas

• Tex. Code Crim. Pro. Art. 2.024 (requiring tracking of jailhouse informant cooperation and benefits)
• Tex. Code. Crim. Pro. Art. 39.14(h-1) (prosecutorial disclosures)
• Tex. Code Crim. Pro. art. 38-075 (requiring corroboration for jailhouse informants)
• Tex. Code Crim. Pro. art. 38-141 (requiring corroboration for drug informants)
• H.B. 564 (2015) (would ban all compensated informant testimony in capital cases)
• Timothy Cole Advisory Panel on Wrongful Convictions, Chapter 6: Jailhouse Informant Testimony (2010)
• Tarrant County District Attorney’s Jailhouse Informant Procedure

Washington

• Wash. Stat. 10.56.040 (2020) (requiring all prosecutors to adopt protocols for handling and tracking informants)
• Wash. Stat. 10.56.050 (2020) (requiring cautionary jury instructions)
• HB 2654: An Act Relating the Reliability of Incentivized Evidence (2016) (would mandate the use of reliability hearings for all informants); see also SB 6503 (authorizing reliability hearings).
• SB 5373: An Act Relating to Confidential Informants (2013) (would prohibit the use of informants under the age of 17 and require law enforcement agencies to promulgate new guidelines)
• Senate Bill 5004: An Act relating to disclosure and regulation of criminal informant evidence and testimony (originally introduced by Sen. Bob McCaslin (R-Spokane Valley) in January 2011)