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Article Excerpt
INTRODUCTION
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)
I. THE PRIVILEGE: THE VEIL SHROUDING INFORMANTS
A. 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 of exculpatory information. (59)
Under the privilege, if the defense has a strong suspicion about who the informant is, the government is under no obligation to confirm or deny the suspicion. (60) Even if the identity of the informant is undisputed (e.g., Mr. X), the government need not reveal to the defense other information relating to the informant, such as the informant's whereabouts. (61) More importantly, the privilege prevents the defense from using known information about the informant at trial. The defense cannot call or compel the government to call Mr. X as a witness at trial, argue to the jury that Mr. X is the informant, introduce evidence about Mr. X, or question other witnesses about the informant. (62)
B. Purpose of the Privilege
The rule of nondisclosure serves two interests: the protection of potential informants and the protection of those who are already informants. (63) The Supreme Court has recognized that effective law enforcement is served by "protecting the flow of information" to law enforcement agencies regarding violations of the law. (64) People, however, may be less likely to furnish information to law enforcement or assist in the investigation of crimes if they know their identities will not be kept confidential. (65) Potential informants may fear retaliation from those who would resent their communications to the government. (66)
A rule of nondisclosure also protects those who are already informants. (67) Disclosure of a particular informant's identity may place the informant in danger (68) or compromise other ongoing investigations in which the government is using the informant. (69)
C. Scope of the Privilege
Like most privileges, "the scope of the [informer's] privilege is limited by [the] underlying purpose." (70) If the identity of the informant has already been revealed "to those who would have cause to resent the communication, the privilege is no longer applicable." (71) The privilege also does not apply where the informant is dead. (72)
II. PROBLEMS WITH AN UNQUALIFIED PRIVILEGE
As DeVose's story demonstrates, informants and their handlers cannot always be relied upon. An absolute rule of nondisclosure creates opportunities for abuse by providing informants and their handlers with the protection that secret affords. The privilege permits checks on the informant-handler relationship from only one source-the government. The privilege's reliance on the government as the sole regulator of the informant-handler relationship, however, is misplaced. Law enforcement agencies and prosecutors do not have the incentives to critically examine the informant-handler relationship involved in a particular criminal case.
A. Informants and the Incentive to Lie
It is well-documented that many informants lie. (73) One author identifies two basic types of informant lies: "frame-up lies" and "entrapment lies." (74) The former refers to a false accusation by the informant that the defendant committed the crime. (75) The latter refers to a deceptive depiction by the informant of the extent to which she induced the defendant to commit the crime. (76)
Informants lie for any of a number reasons: they want the government cash reward that comes with serving as an informant; they want to "cover up" the fact that it was they or a colleague who committed the crime; they want to eliminate rivals or obtain payback from those who have crossed them; or they are pressured by law enforcement to lie. (77) The government practice of compensating informants through a promise of leniency regarding pending charges creates a particularly strong incentive to lie. (78) Given the option between informing or prison, an informant who has no information that she can give may choose to fabricate a story to appease the prosecution and avoid losing her liberty. (79)
Informants also may view the relationship with the government that is created from serving as an informant as a virtual guarantee of government protection in their own criminal activities. (80) One particularly egregious case of FBI informants exploiting their relationship with the government involves the infamous Whitey Bulger, alleged mob boss of the Winter Hill Gang, and his partner Stephen "The Rifleman" Flemmi. A series of opinions by Judge Wolf revealed that the government had invoked the informant's privilege to "cover-up" the FBI's use of Bulger, Flemmi, and other high-level mafia members as informants, that the informants had implicit authorization from the FBI to commit crimes, and that the handlers protected the informants, including "tipping them off" to law enforcement investigations. (81)
B. Law Enforcement
Handlers cannot always be trusted. Undoubtedly, many law enforcement officers are honest and respect the rules and procedures of the criminal justice system. It is also true, however, that many instances of deliberate deception by officers exist. (82) Officers may lie for any of a number of reasons. For example, they may view the rules and procedures of the criminal justice system as obstacles to convicting and punishing those whom they intuitively believe to be guilty or they may want to protect themselves or colleagues from civil or criminal liability. (83)
Regardless of the reason, many instances of police officers fabricating an informant and using this imaginary informant as the basis for warrants and police reports have come to light. (84) As DeVose's case shows, law enforcement officers also may lie about the circumstances of a crime to which they were a witness or about various aspects of an investigation into criminal activity. (85)
While deliberate deception by handlers remains a persisting problem, the more prevalent problem is that law enforcement officers simply do not have the incentives to exercise the type of control over informants that is necessary to keep the informants in check. The pressure on police officers to promptly clear cases leads them to focus on identifying and arresting a suspect, rather than considering and testing alternative theories. (86) Officers "are relatively unconcerned with questions such as whether sufficient evidence exists to file a charge, go to trial, or gain a conviction." (87) This may lead them to uncritically accept information from informants except when circumstances suggest an obvious fabrication.
Once an arrest has been made or a prime suspect has been identified, police officers become less likely to doubt informants who provide information supporting the guilt of the suspect because, at this point, they are no longer neutral investigators (88) but rather, become "artifacts of the adversary process." (89) They "acquire both a positive interest in promptly closing the investigation, and a negative interest in supplying evidence that might prevent a conviction." (90)
Although the law enforcement agencies for which the officers work have systems for regulating the informant-handler relationship, these systems do not address the underlying causes of informant misconduct and mishandling and thus, are inadequate at preventing abuse. (91) For example, one investigation of the FBI informant system found violations of the rules governing informant use in 87% of the cases reviewed. (92) Moreover, internal investigations of officers who allegedly mishandle an informant "usually result in exoneration[s]." (93)
C. Prosecutors
Prosecutors also do not have the incentives to keep informants in check. Even though a prosecutor has "a duty to see justice done ... he is also a zealous advocate." (94) A prosecutor therefore will not interview or investigate an informant if such action will not benefit her case or if the costs of conducting such action exceed any such benefits. (95)
DeVose's story provides an illuminating example. There, the assistant prosecutor represented to the state trial court that the informant did not have exculpatory information. (96) The defense counsel countered that an interview with the informant would reveal what the informant Knows. (97) The state trial court credited the assistant prosecutor's statement and denied DeVose's motion for disclosure of the informant. (98)
When DeVose petitioned for habeas corpus relief in federal district court, the assistant prosecutor was again asked whether the informant could provide exculpatory information. (99) Her answer to the federal district court sharply contrasted from the answer she gave to the state trial court. The assistant prosecutor admitted "that she herself knew nothing about the confidential informant, and that she had never spoken to him, and never read a statement prepared by him. She did not even know his name until the July 7, 1994 heating [before the federal district court]." (100)
The conduct of the assistant prosecutor in DeVose reflects the reality that the prosecution has little, if any, incentive to interview or investigate non-testifying informants. For example, in a typical drug case, one or more undercover police officers will either be a witness to or a participant in the drug transaction involving the defendant. These were the facts in DeVose. (101) In such cases, the prosecution already has the statements and testimonies of the undercover officers. Absent a reason to question the credibility of the officers, the prosecution has no incentive to find out what the informant knows. (102) Even if circumstances would lead an independent, neutral fact-finder to question the veracity of the officers or the informant, the prosecutor evaluates the circumstances "from an advocate's point of view." (103)
III. BRADY AND GENERAL CRIMINAL DISCOVERY
A criminal defendant has no general fight to discovery (104) and thus, has no general fight to obtain from the prosecution information relating to an informant. The traditional reason against such a right is that prosecutorial disclosure would provide the defense with an undue advantage; the defendant would be able to tailor her defense to the prosecution's evidence contrary to the adversarial system. (105)
In Brady v. Maryland, (106) however, the Supreme Court recognized a limited exception to the general rule against criminal discovery. The Brady Court held that due process requires the prosecution to disclose to the defense, upon request, evidence favorable to the defendant. (107) The failure of the Brady doctrine in providing defendants with realistic access to exculpatory evidence in the hands of the government has been well-documented and is beyond the scope of this Note. (108) What is pertinent, however, is that the Brady doctrine does not apply to most instances when a defendant is seeking disclosure of an informant.
In order for a duty of prosecutorial disclosure to arise, the evidence must be "material either to guilt or to punishment." (109) Moreover, Brady does not apply where the prosecutor does not know of the exculpatory evidence and the prosecutor could not reasonably be imputed to have such knowledge. (110) Prosecutors, like the assistant prosecutor in DeVose's case, often do not know the informant's name let alone whether the informant knew of material information favorable to the defense. (111) As previously discussed, prosecutors lack the incentives to interview and investigate informants. (112) Moreover, the government's refusal to disclose the informant's identity, without more, cannot constitute a Brady violation because withholding the identity pursuant to a proper invocation of the privilege cannot be characterized as suppression of exculpatory information. (113)
While knowledge of exculpatory evidence will be imputed on the prosecutor if the evidence is known "to the others acting on the government's behalf in the case, including the police," (114) this wrinkle has proven difficult to enforce. In order to establish a Brady violation, a defendant must demonstrate (1) the evidence is favorable to the defendant, either because it is exculpatory or because it is impeaching; (2) the evidence was suppressed by the government; and (3) the evidence was material such that the defendant was prejudiced by the suppression. (115) A defendant who does not know who the informant is, let alone what the informant knows, would have difficulty demonstrating that the government suppressed evidence favorable to the defense by not disclosing the confidential informant. (116)
IV. ROVIARO: A LIMITED EXCEPTION TO THE PRIVILEGE
In 1957, the Supreme Court in Roviaro v. United States (117) established a framework through which criminal defendants could challenge the government's invocation of the informant's privilege. (118) Subsequent Supreme Court cases discussing Roviaro, however, have revealed a Court that is deeply ambivalent about Roviaro's scope and meaning. (119)
A. The Roviaro Case
1. The Facts
The facts of Roviaro derive largely from the...
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