Confidential Informants: Disclosure

Attorney John Mark Frazier Jr.

By: John M. Frazier Jr., Esq.

As far as interesting topics in criminal law go – confidential informants are among the top. This is a brief primer on Florida’s disclosure of confidential informants. It is not the entire picture and does not substitute seeking the legal counsel of an attorney for your specific case. As always in the law, the answer is typically, “It depends.”

However, in many cases, arresting agencies use confidential informants to setup controlled exchanges. So, what happens when you or someone you know is arrested for a drug sale or an illegal firearm sale and there is a confidential informant involved? The State may try to keep the confidential informant’s identity hidden. It is well settled in Florida that the State “has a limited privilege to withhold the identity of a confidential informer…” State v. Zemora, 534 So.2d 864 (1988). This is based upon public policy that helps define the scope of the privilege. This privilege protects public interest in effective law enforcement. Without confidential informants, law enforcement will be unable to deter, detect, or stop a large quantity of crime. Additionally, the underworld often seeks out vengeance on informers which would ultimately stop informers from supplying law enforcement with the required information to stop crime, if disclosure was ordered in all cases.

Where the confidential informant supplied police with only information establishing probable cause for a search, disclosure is not required. State v. White, 418 So.2d 411 (Fla. 2d DCA 1982). A bare allegation that the defendant cannot prepare his case without disclosure is insufficient. State v. Hernandez, 546 So.2d 761 (Fla. 2d DCA 1989). Merely because a confidential informant is a witness to relevant events in a criminal case does not, without more, require the confidential informant’s disclosure. State v. Zemora. In essence, if the confidential informant is just a conduit for a transaction or a non-material witness, then the withholding of the identity of the confidential informer will likely stand.

It is clear that “the burden is upon the defendant claiming exception to the rule of non-disclosure to show why an exception should be invoked.” Treverrow v. State, 194 So.2d 250 (Fla. 1967). Where the disclosure of an informer’s identity, or of the contents of his communication, [1] is relevant and helpful to the defense of an accused, or [2] is essential to a fair determination of a cause, the privilege must give way. State v. Zemora (citing to Roviaro v. United States, 353 U.S. 53 (1957)). Under the first component of the Roviaro exception, Florida courts have ordered the disclosure of a confidential informant only in cases where the defendant asserted a legally recognized defense to the crime charged, supported that defense with sworn proof, and showed that the confidential informant was a material witness to this defense. State v. Zemora. As you may imagine, a popular defense in these instances would be entrapment. If the defense falls just short of satisfying the first Roviaro component then the court should hold an in camera review to determine if the subject informant is a helpful witness to the defense being raised by the defendant. State v. Zemora.

Under the second alternative component of the Roviaro exception, Florida courts have ordered the disclosure of confidential informants where such was deemed essential in order to guarantee the defendant his due process right to a fair trial; to date, the cases which have ordered such disclosure have centered around the defendant’s right to be informed of the crime with which he is charged or to confront the witnesses against him. State v. Zemora. This second Roviaro component does not trigger the in camera review.

Additionally, it has accordingly been held that the disclosure of a confidential informant is absolutely required where the defendant is charged with selling or delivering illegal drugs to the subject informant, where the state calls the confidential informant as a witness at trial, or where the informant executes the affidavit upon which a search warrant is issued for the search of the defendant’s home, or where the confidential informant is a defense witness at trial and the defendant seeks to cross examine a police officer concerning the informant’s identity and active involvement in the charged illegal drug transaction. State v. Zemora. It is possible and also logical that this also would concern the selling or delivering of any type of illegal subject matter – not just specifically illegal drugs. Again, it is important to note that if the confidential informant is not a material witness and is just a mere presence at the exchange then it is unlikely that the second component of the Roviaro exception will be granted.

Lastly, as for sanctions to be imposed for violation of a disclosure order, it is well settled that “in these situations the trial court may require disclosure of the confidential informant, and if the Government withholds the information, dismiss the information [or indictment].” State v. Zemora (citing Roviaro).

In summary, the Government has a limited privilege in nondisclosure of the confidential informant which can be bypassed through the two Roviaro exceptions. The first component of Roviaro if granted should likely result in an in camera hearing to determine the testimony of the confidential informant. The defendant need not allege all the elements of the defense; it is sufficient that the defense is possible in light of the alleged facts. State v. Zemora (citing Munford v. State, 343 So.2d 67 (Fla. 2d DCA 1977)). The second component of Roviaro has no in camera hearing but is based upon due process considerations and the right to confront witnesses. If the Government fails to disclose the confidential informant after disclosure has been granted, then the trial court should dismiss the information or indictment.

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