I would imagine that a great number of confidential informants (that’s the police word for them; to everyone else, they are generally known as “snitches”) are surprised to learn that their identity is not so “confidential” after all.
The privilege to refuse to disclose the identity of a confidential informant is not absolute. Texas Rule of Evidence 508(a) provides that the Government has a privilege to refuse to disclose the identity of “a person who has furnished information relating to or assisting in an investigation of a possible violation of law to [police or investigative committee.]”
But, there are three exceptions to this privilege, meaning that where such exception exists, the Government must turn over the name of the confidential informant. See TRE 508(c)(1)-(3). And, like all privileges, the Government can choose whether to exercise the privilege or not—meaning, they are not required to keep the confidential informant’s name secret to begin with.
But these exceptions probably never come up, right? WRONG. They come up frequently.
Part of the reason for this is that the exceptions are relatively broad. In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) the Supreme Court of the United States held that the identity of the informant (as you might expect, the Supreme Court prefers “confidential informant” to “snitch”) must be revealed where the informant:
(1) participated in the offense;
(2) was present at the time of the offense or arrest;
(3) or is a material witness as to the culpable mental state of the defendant.
Think this over for a second: how many times do you think snitches in drug cases conduct hand-to-hand’s for police? Are present when the accused is arrested, or is present when the accused is (allegedly, of course) buying, cooking, or selling drugs; is negotiating drug transactions; etc.? This happens all the time.
In addition to Roviaro, Rule 508(c)(2) of the Texas Rules of Criminal Evidence provides that the identity of the informant must be revealed when “the informant may be able to give testimony necessary to a fair determination of the issue of guilt, innocence.”
This has been held to be broader than Roviaro. See Bodin v. State, 807 S.W.2d 313 (Tex.Cr.App.1991). So now we have four situations where the identity of the informant must be revealed; when the informant:
(1) participated in the offense; or
(2) was present at the time of the offense or arrest; or
(3) is a material witness as to the culpable mental state of the defendant; or
(4) may be able to give testimony necessary to a fair determination of the issue of guilt/innocence
A few points are notable about the fourth exception.
First, note that the identity of the snitch must be revealed where the snitch may be able to give testimony as to guilt/innocence. There is no requirement that the defense be able to definitively prove that the snitch can absolutely give such testimony—only that the defense show it may be necessary. This makes sense: if the defense does not know what the informant would/would not be able to testify to, how could the defense definitively prove that the informant’s testimony would be absolutely necessary towards a fair determination of guilt or innocence? We couldn’t. And, that’s why the defense is only required to make a “plausible showing of how the informant’s information may be important.” Bodin, 807 S.W.2d at 318.
Second, note that for this exception, the snitch doesn’t have to have participated directly; be present at the time of the arrest or offense; or be a material witness to the culpable mental state of the defendant. See Bodin, 807 S.W.2d, for example. In this way, it is broader than the three stated Supreme Court exceptions.
So what happens if the Court determines that the Government does have to give up the name of the snitch? The State may elect whether or not it will disclose the informant’s identity—but there is a catch: if the State refuses to name the snitch, the Court must dismiss the charges upon motion of the defense.
So it’s either give up the name of a snitch (who is likely snitching to work off their own charge) who the police couldn’t, quite frankly, care less about, or give up the name of the snitch and nail a big-time drug player…which do you think the Government is inclined to do?