The law governing criminal informants is changing. New issues are being raised and litigated; states are promulgating new legislation and rules (see also LEGISLATION tab). This section describes some of these issues, with links to sample cases and filings where available. Disclaimer: SNITCHING.ORG does not guarantee the accuracy or currency of any of these materials or descriptions. They are partial and informational only, and SNITCHING.ORG does not provide legal advice.
Brady/Disclosure (pre- and post-trial)
Much informant litigation revolves around the government’s disclosure or non-disclosure of information about the informant. Some states (e.g. Illinois, Massachusetts, Nebraska, Florida) have heightened disclosure requirements for informants. Others follow the standard constitutional requirements contained in Brady and Giglio which require the government to disclose all impeachment materials regarding informants including any promises or benefits they may have received. See, e.g., Van de Kamp v. Goldstein, ACLU Amicus Brief (2008) (addressing government obligation to collect and disclose information about informants)
Reliability hearings are pre-trial hearings in which the court evaluates the reliability of an informant before permitting testimony before the jury. For example, Illinois requires courts to hold reliability hearings before jailhouse informants can testify in capital cases.
See, e.g., Ill. Comp. Stat., ch. 725, s. 5/115-21(d) (describing reliability hearing procedure and requirements); see also Sample Motion Seeking Informant Reliability Hearing (federal).
Expert Trial Testimony
Jurors may not understand the lengths to which informants can and do go to fabricate information. Jurors may also be unaware of the widespread assumption that informants will eventually be rewarded for their testimony, even if no benefits have been expressly promised to them prior to trial. Accordingly, expert testimony may be helpful to educate the jury about the workings and expectations of informant culture, particularly for jailhouse informants. See, e.g., State v. Leniart, Case No. 36358 (Conn. App. Ct. June 14, 2016). Some courts, however, have excluded such testimony.
Jailhouse Informant Procedures & Protections
In light of the danger that jailhouse informants will fabricate evidence, some attorneys have sought protective orders or other measures to prospectively protect their incarcerated clients.
See, e.g., Motion to Preclude Creation of Snitch Testimony, State v. Longoria (Kansas)
Due Process/Eighth Amendment Challenges to Informant-Based Convictions
At least one federal circuit has held that the use of a highly unreliable criminal informant can violate a defendant’s due process rights. Others have argued that the use of an unreliable and/or compensated informant violates the 8th Amendment prohibition against cruel and unusual punishment.
See, e.g., Maxwell v. Roe, 628 F.3d 486 (9th Cir. 2010)
For more cases and examples, go to the INFORMANT LAW section of SNITCHING BLOG. 8.2.3