The Informant File, Discovery, Brady and Hidden Informants

 

The informant’s file should be near the top of the items in your demand for discovery. The file contains all biographical data relating to the informant. The informant file is where internal memoranda regarding informant misconduct during investigations and damaging deactivation reports will be found. It is also where informant payment records are held.

 

Law enforcement agencies and prosecutors often vigorously resist disclosing the contents of an informant’s file, behaving as though the file contained state secrets. Defense counsel should not relent in their efforts for disclosure. While much of the file contains mundane, administrative paperwork, informant files often contain relevant information about the informant’s reliability. When the reliability of an informant witness may be determinative of guilt or innocence, evidence affecting the informant's credibility falls within the general rules of Brady.

 

Informant files often contain relevant information about the informant's reliability.Procedures for documenting new informants can vary dramatically between agencies. Some police departments require as little as a criminal background check to determine if the prospective informant is a fugitive. The departmentally required documentation may be nothing more than an index card kept in the control agent’s desk.

 

At the other end of the spectrum is the Federal Bureau of Investigation (FBI). It demands an Initial Suitability Report that requires agents to explore more than a dozen areas that may disqualify a potential informant. The process can take months to accomplish before an informant is approved for utilization.

 

The informant registration and approval system begins the process of asserting departmental control over the use of informants. It also assists in assessing the risk associated with operating an informant. The complexity of the documenting process can be indicative of how many times the law enforcement agency has been involved in an informant-related law suit or scandal.

The Hidden Informant

A complex criminal investigation without an informant or cooperating witness is rare. You should suspect informant involvement in every criminal case you encounter. If you are told there is no informant in your case, keep digging. Agents have been known to “clean up” cases, devise an alternative method of reporting information used to build a case, and in effect, create an informant-free case file.

Assistance

Dennis G. Fitzgerald has been reviewing informant files throughout his career, both as a law enforcement supervisor and as a defense consultant. He can assist you in preparing you demand for discovery, reviewing investigative files and in assessing the contents of Brady material.

Further Reading

Read the article, Inside the Informant File, written by Dennis for Champion Magazine, May 1998.

 

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