(a) Agencies should adopt written rules and policies that govern the use, approval, reward, and oversight of informants and undercover agents. These rules and policies should take into account:
- (1) the degree of tolerable risk to the safety of informants, undercover agents, and the public;
- (2) the permissible level of intrusiveness involved in the use of informants and undercover agents;
- (3) the value and reliability of information obtained;
- (4) whether the informant is represented by counsel;
- (5) the nature and magnitude of incentives expected from government; and
- (6) the potential for and consequences of criminal activity such use might foster.
(b) Agencies should document information regarding the foregoing factors and how they influence decisions to use informants and undercover agents, and should document all informant agreements.
a. Uses of informants and undercover agents. Informants and undercover agents can provide extremely valuable evidence during criminal investigations. Informants may be particularly valuable when it is necessary to secure inside information regarding ongoing criminal enterprises. Traditionally, however, informants and undercover agents have been used in a wide range of circumstances, from petty cases to organized crime cases, and often without clear rules, policies, or resulting oversight. This Chapter reflects the need for written rules and policies regarding the use of informants and undercover agents given the range of risks their use creates.
b. Definition of “informants.” For purposes of this Chapter, informants are defined as persons who provide police with information in return for a covertly arranged tangible benefit. Thus, the typical eyewitness who provides information without such an expectation, or an anonymous tipster who provides information in response to a publicly announced reward, is not an informant. Similarly, this Chapter does not cover expert witnesses who testify with the expectation of public remuneration from government.
The benefits informants receive may come in the form of a more lenient outcome in their criminal case, forbearance from arrest or prosecution, a financial payoff, benefits directed to a third party such as a relative, or some other type of concrete assistance. Such agreements to provide benefits to informants often have been informal, with the terms of the arrangements not discussed fully or explicitly, but rather assumed in whole or in part based on past experiences with law enforcement or prosecutors. Such arrangements should be made formal, explicit, and should be documented in written form.
Agencies may categorize informants in a number of ways, including:
- (1). confidential informants—informants whose identity is protected, for safety and investigative reasons, even from some law-enforcement and legal actors. Although many types of informants have their identities kept confidential to a greater or lesser degree, agencies may provide a heightened level of confidentiality to some informants;
- (2). incarcerated informants or “jailhouse informants”—individuals who cooperate while in custodial settings; and
- (3). cooperating defendants—individuals who cooperate once they become criminal defendants and who are represented by counsel.
While recognizing the terms, this Chapter does not use them in any definitional sense because the categories they describe are of degree rather than kind. For example, all informants may have their identities kept confidential to some degree, and further, some information about their identities will be available within law enforcement and may ultimately be disclosed in court. Similarly, informants who are in jail may face special pressure to cooperate and may be strongly incentivized to do so, but so may a range of other persons, including those not in jail but facing criminal charges. Some informants may not initially be facing criminal charges, but if charged, they will be represented by counsel, and their Sixth Amendment right to counsel must be respected. To varying degrees these factors all play a part in the Principles that follow.
c. Definition of “undercover agents.” In addition to informants, this Chapter covers the use of “undercover agents” (or “undercover officers”). They are members of a policing agency who operate covertly. The use of undercover agents raises issues similar to the use of informants with regard to matters such as intrusiveness, legitimacy, and involvement in ongoing criminality. The topic of undercover agents is treated separately in § 12.07 because, in contrast to informants, undercover officers are trained members of policing agencies who are remunerated in the course of formal employment.
d. Competing values in the uses of informants, generally. Informants can provide important evidence during criminal investigations. This is particularly the case with regard to ongoing criminal enterprises, which often only can be investigated effectively by securing inside information from the participants themselves. However, the use of informants implicates a range of important concerns, among them: (i) public safety, including ongoing criminal activity engaged in by informants; (ii) individual safety of the informants themselves and others; (iii) intrusiveness, in terms of the reach of some informants into the community, in observing private activities and sharing positions of trust with community members; and (iv) reliability, if incentivized informants provide false or misleading statements. In addition, the right to counsel is implicated if the informant is or ought to be represented by counsel.
e. Public safety. The use of informants can provide valuable information, but it can also compromise law-enforcement efforts to protect public safety. For example, informants who are part of ongoing criminal enterprises, or who continue to be involved in criminal activity, pose an ongoing risk to the public if their use furthers, rather than halts, criminal activity. Great care therefore must be exercised over the use of informants regarding the potential for and the consequences of resulting criminal activity. Investigations of national-security matters raise special dangers regarding public safety, as well as informant safety, potential for intrusiveness, and reliability, especially because fewer constitutional restrictions apply; as a result, more detailed policies and oversight are needed, and have been promulgated at the federal level, regarding such uses of informants.
f. Informant safety. Informants themselves may be at risk when participating in criminal investigations and aiding law enforcement. They may be asked to take investigative steps that are far riskier than those requested of the average cooperating witness. Further, many informants are themselves members of vulnerable populations; they may be young, unaware of their rights, or suffering from substance-abuse or mental-health issues. When the government uses informants in seeking to obtain information during criminal investigations, people who already are vulnerable can be placed at an especially high risk. Those safety consequences should also be assessed carefully.
g. Intrusiveness. The use of informants can be intrusive. When informants are private citizens whose relationship with law enforcement is typically not well known, they can be in a position to observe a wide range of private behavior and gain access to information that people would not expect to be shared with law enforcement. Some of that information may be valuable for purposes of criminal investigations, but other information may be highly personal, and gathering it may be quite intrusive, even if there is law-enforcement benefit.
Informant witnesses can provide valuable information, but their use also can contribute to community distrust of law enforcement. Informants may hold positions of trust with individual members of the community and with community groups, and their use may undermine community trust as a result. Informants may be privy to a wide range of information that people would assume would be kept private. There have been real concerns that activist, religious, and other types of community groups, as well as the press, have had their free-expression and associational rights infringed and chilled through the use of informant surveillance.
h. Reliability. Informant evidence often is needed in investigations in which other, more direct, and potentially more reliable, evidence is lacking. If there were clear-cut evidence of guilt, there typically would be no need for law enforcement to provide incentives to an informant. However, too often there has been insufficient screening of informant evidence to ensure its reliability. Ensuring reliability is a dynamic process; certainty about reliability may change over time as information concerning the informant and the case develops.
Informants may be incentivized to provide information, but not necessarily accurate information. Verifying the accuracy of the information provided by informants can be difficult given the settings in which they gather information. Surveillance conducted by and recordings made by informants may not reflect fully the context of the words or actions captured. And informants may be the sole or primary source of the information or context needed to assess the reliability of the information they provide. An officer can even fabricate the very existence of an informant, if colleagues are not able to verify the informant’s identity or existence. Incentivized informants have provided false information during investigations and criminal trials, and such information sometimes contributes to wrongful convictions.
All types of informant evidence can raise significant accuracy concerns, but informants who are incarcerated or face incarceration pose heightened accuracy concerns. This is because the benefits they receive or hope to receive from providing information—in the form of reduced sentences, improved conditions of incarceration, or early release—are particularly tempting. Incarcerated informants also have ready-made access to a population already accused of crimes, the members of which are especially susceptible to wrongful accusations. Other types of informants, due to their backgrounds, the circumstances of their cooperation, or the substance of their information, also may raise heightened concerns regarding accuracy.
i. Policy and practice. This Chapter details what written policies and practices should include regarding the use, approval, reward, and oversight of informants, as well as undercover officers. This Section begins by stating that agencies should promote the objectives of this Chapter through written policies, training, and supervision of the use of informants. This is a change from past practices, in which the criteria for selecting informants, the types of incentives that could be provided, the level of confidentiality provided, the documentation of evidence concerning informants, and the general parameters concerning agreements with informants, often were not set out in policy. As these Principles consistently emphasize, officers should abide by clearly documented standards and procedures. See § 1.06. Prosecutors, independently or in cooperation with law enforcement, also may negotiate with, and provide benefits to, informants and may receive information from informants during criminal investigations. To the extent that prosecutors use informants or cooperate in the use of informants, these Principles are intended to address their conduct. See § 1.01 (defining application of these Principles from a functional perspective).
j. Tracking use of informants. In the past, agencies have had or maintained very little information about how often, or in what ways, informants were used, what incentives they received, and what information they provided. Such information should be documented. In particular, written agreements should reflect what incentives have been offered or provided to informants. More broadly, information concerning the use of informants is necessary in order to evaluate their value and reliability. Because of a simple lack of data regarding informant use, and because the full costs of informant criminality are not documented or assessed, there is reason for concern that agencies may overvalue the use of informants and undervalue the risks of using them. In addition, absent any systematic recordkeeping, agencies may not be aware of the use of individuals who should not be trusted to provide reliable information. Sound information documenting the use of informants is important to agencies themselves, as well as to other legal actors. For example, such information may provide constitutionally required impeachment evidence in court. Agencies should track the use of informants, the value and reliability of the evidence they provide, the benefits or leniency that informants receive in exchange for their cooperation, and the criminal activity that is tolerated in exchange for that information. Agencies should thus assess periodically the full costs and benefits of incentivizing criminal informants and consider their policies toward such use. Further, agencies should develop mechanisms to ensure the exchange of information between agencies regarding informants. For example, an agency might use an informant without knowing that another agency has found that informant to be unreliable in the past.
The greatest benefit that law enforcement receives from using informants is evidence that could not otherwise be obtained during criminal investigations, particularly with regard to ongoing criminal enterprises. Informants typically will not be needed to investigate crimes for which there are other types of evidence; using them in such situations may reflect inattention on the part of agencies, especially in light of clear risks to public safety that arise from informant use. Those risks include that informants themselves may conduct purchases or engage in other criminal transactions in order to uncover criminal enterprises. Richard C. Donnelly, Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs, 60 Yale L.J. 1091, 1092-1093 (1951); Michael F. Brown, Criminal Informants: Some Observations on Use, Abuse, and Control, 13 J. Police Sci. & Admin. 251 (1985). Judge Learned Hand summarized the reasons for using informants:
Courts have countenanced the use of informants from time immemorial; in cases of conspiracy, or in other cases when the crime consists of preparing for another crime, it is usually necessary to rely upon them or upon accomplices because the criminals will almost certainly proceed covertly.
United States v. Dennis, 183 F.2d 201, 224 (2d Cir. 1950), aff’d, 341 U.S. 494 (1951). Informants of various types can provide not only inside access to information, but also both substantive and procedural benefits for law enforcement. As Alexandra Natapoff explains, “[i]nformant deals . . . make law enforcement activities easier and cheaper. By using informants, investigators often can avoid the need for search warrants, wire taps, and other time-consuming procedures that require court authorization.” Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 31 (2009).
However, the use of informants is not limited to situations in which serious criminal organizations or accomplices are investigated. Informant use remains common in policing in the United States, in a wide range of investigations. Federal agencies, which often focus on organized crime and complex investigations, have long used informants. In fact, “[s]ince the inception of the FBI in 1908, informants have played major roles in the investigation and prosecution of a wide variety of federal crimes.” U.S. Dep’t of Just., Off. Inspector Gen., The Federal Bureau of Investigation’s Compliance with the Attorney General’s Investigative Guidelines: Chapter Three: The Attorney General’s Guidelines Regarding the Use of Confidential Informants (2005). The U.S. Drug Enforcement Administration “had over 18,000 confidential sources assigned to its domestic offices” from October 2010 through September 2015. U.S. Dep’t of Just., Off. Inspector Gen., Audit of the Drug Enforcement Administration’s Management and Oversight of its Confidential Source Program (2016). Confidential sources may include witnesses performing investigative activities who do not receive a covertly arranged tangible benefit, but they may also include “informants,” as defined here. Id. at 3. The U.S. Sentencing Commission reports that federal defendants received credit for their cooperation, as defined under the U.S. Sentencing Guidelines, within every category of federal offense in 2018, including homicide, kidnapping, and child pornography. U.S. Sent. Comm’n, Table 30: § 5K1.1 Substantial Assistance Departure Cases (2018). Informants also are frequently used and rewarded at the state and local level, especially to investigate street crimes, gun offenses, and low-level drug offenses, and to obtain warrants. See, e.g., ACLU, An Exploratory Study of the Use of Confidential Informants in New Jersey (2011), available at https://www.aclu-nj.org/files/1113/1540/4573/0611ACLUCIReportBW.pdf; Laurence A. Benner & Charles T. Samarkos, Searching for Narcotics in San Diego: Preliminary Findings from the San Diego Search Warrant Project, 36 Cal. W. L. Rev. 221 (2000).
Policing agencies also use a variety of terminology to describe informants, which reflects the variety of types of investigations in which they are used and the different rules or practices in place concerning their use. As noted, this Chapter eschews definitional use of any of those terms, which do not necessarily reflect clearly defined categories. For example, although “jailhouse” informants refers to informants who are in custody, and although their use does pose heightened reliability concerns, similar reliability concerns may be raised by other informants, such as those facing criminal charges who are not in custody. The definition of “informants” here encompasses all witnesses who expect or receive a covertly arranged tangible benefit in order to ensure that the use of all such witnesses is done with care. Draft legislation regarding informants has adopted similarly broad definitions, including regarding what can constitute a benefit. See, e.g., Washington Engrossed Substitute Senate Bill (ESSB) 5038 (2017) (‘“Benefit’ means any deal, payment, promise, leniency, inducement, or other advantage offered by the state to an informant in exchange for his or her testimony, information, or statement, but excludes a court-issued protection order. ‘Benefit’ also excludes assistance that is ordinarily provided to both a prosecution and defense witness to facilitate his or her presence in court including, but not limited to, lodging, meals, travel expenses, or parking fees.”).
Many current agency policies govern only limited categories of informants, which can as a result create real gaps in policy. For example, the U.S. Department of Justice has a policy regarding the use of informants deemed “confidential,” but not regarding other types of informants (although cooperation credit for these other types may be provided under rules set out in the U.S. Sentencing Guidelines, as noted). U.S. Dep’t of Just., Department of Justice Guidelines for the Use of Confidential Informants (2001). The use of informants can raise public-safety, reliability, intrusiveness, and other concerns, and, as a result, all uses of informants should be governed by a carefully considered policy.
National-security investigations raise distinct issues, as there may be a need for informants at the federal level to assist with domestic-terrorism investigations. The U.S. Department of Justice (DOJ) first drafted guidelines requiring vetting and overseeing such informants in 1976, and it has revised the guidelines since then. The Attorney General’s Guidelines Regarding the Use of FBI Confidential Human Sources (2006) applies to the Federal Bureau of Investigation’s use of informants, and The Attorney General’s Guidelines Regarding the Use of Confidential Informants (2002) applies to all other DOJ law-enforcement agencies and federal prosecuting offices. Still, the U.S. Government Accountability Office (GAO) has called for improved compliance with those policies to better improve documentation and oversight of informants. GAO, Confidential Informants: Updates to Policy and Additional Guidance Would Improve Oversight by DOJ and DHS Agencies, GAO-15-242SU (Washington, D.C.: Mar. 6, 2015).
Law enforcement also can obtain inside information about ongoing criminal enterprises by using undercover agents, which are separately discussed in § 12.07. Undercover agents raise many of the same issues regarding safety, reliability, and intrusiveness as do informants. But in comparison to undercover agents, who “must devote substantial time and resources to infiltrating criminal organizations while exposing themselves to significant harm,” active criminal informants “can expedite that process significantly.” Michael L. Rich, Brass Rings and Red-Headed Stepchildren: Protecting Active Criminal Informants, 61 Am. U. L. Rev. 1433, 1439 (2014). Indeed, “[i]n some cases, these informants can remove the need for undercover work entirely by continuing their involvement in the organization and obtaining evidence of criminal activity directly.” Id. at 1440. However, informants do not act as professional and trained members of law enforcement; undercover agents can be more directly supervised and held accountable under agency policies.
Interests implicated by informant use. Offsetting the benefits of the use of informants are a set of interests implicated by their use. Policy in this area seeks to balance concerns for public safety, informant safety, intrusiveness, and reliability, due to the risk of incentivizing false testimony.
First, using informants can result in risks to public safety. Many common uses of informants involve official toleration of informant crime, including in the form of ongoing criminal activity. By their nature, many informant deals involve leniency for past and sometimes current wrongdoing by informants, which means that culpable defendants escape accountability and victims never may receive full vindication or restitution. Moreover, as discussed in greater detail in § 12.05, informants often are able to continue criminal activities by virtue of their ongoing relationships with government handlers. See U.S. Dep’t of Just., Off. Inspector Gen., The Federal Bureau of Investigation’s Compliance with the Attorney General’s Investigative Guidelines (2005). The extent to which the government is willing to tolerate crime by its own informants has been the subject of several congressional inquiries. See, e.g., House Report 108-414, Everything Secret Degenerates: The FBI’s Use of Murderers as Informants, Committee on Gov’t Reform, 108th Congress (2004); U.S. House Judiciary Committee, Oversight Hearing on Law Enforcement Confidential Informant Practices, Washington, DC (July 19, 2007); H.R. 1857, The Confidential Informant Accountability Act, 115th Congress (2017). Further, “that violent and destructive offenders may be permitted to remain at large is frightening to law-abiding citizens.” Natapoff, supra, at 43.
Second, informants themselves may be placed in positions that endanger their safety. The pressures exerted on informants to cooperate with the government can disadvantage and injure especially vulnerable classes of informants, including children, college students, and other young adults, and people with substance-abuse or mental-health issues. See, e.g., Sarah Stillman, The Throwaways, New Yorker (Aug. 27, 2012), https://www.newyorker.com/magazine/2012/09/03/the-throwaways; Confidential Informants, CBS News: 60 Minutes (Dec 6, 2015), https://www.cbsnews.com/news/confidential-informants-60-minutes-lesley-stahl. Vulnerable informants may risk injury or even death in the hopes of receiving leniency for relatively minor offenses. It is self-evident that policing agencies should ensure that people who come forward with information receive protection when they cooperate under circumstances that pose a danger to their own safety.
Third, the use of informants implicates concerns about intrusiveness. Informants—private citizens—may gather information regarding a wide range of activity and information in their communities. Although some of that information may be useful to law enforcement, some may not. Intrusiveness is still more problematic when informants have positions of trust with individuals. Informants may also hold positions of trust with groups or organizations, including a wide range of community groups that are not criminal enterprises. Concerns for privacy and liberty also are heightened when informants are used in contexts in which political or religious association and other First Amendment−protected activities are at stake. Gary Marx, Undercover: Police Surveillance in America (Univ. of Cal. Press, 1988); Diala Shamas, A Nation of Informants: Reining in Post-9/11 Coercion of Intelligence Informants, 83 Brook. L. Rev. 1175 (2018). “The secrecy that attends informant use is in tension with some fundamental aspects of American criminal justice. Our penal system promises transparency and public access to information in ways that are important not only to the adjudication of specific cases but to the democratic process itself.” Natapoff, Snitching, at 94. “The idea that criminal processes, records, and results should be public, or what the Court has referred to as the ‘right to gather information,’ is part of a larger democratic commitment to public accountability and responsiveness.” Id.
Fourth, the use of informants can raise reliability concerns. The risk of wrongful conviction is one of the best-known costs of informant use: “Our judicial history is speckled with cases where informants falsely pointed the finger of guilt at suspects and defendants, creating the risk of sending innocent persons to prison.” United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); United States v. Levenite, 277 F.3d 454, 461 (4th Cir. 2002) (noting that compensated testimony “create[s] fertile fields from which truth-bending or even perjury could grow, threatening the core of a trial’s legitimacy”); State v. Patterson, 886 A.2d 777, 789 (Conn. 2005) (“an informant who has been promised a benefit by the state in return for his or her testimony has a powerful incentive, fueled by self-interest, to implicate the falsely accused. Consequently, the testimony of such an informant . . . is inevitably suspect”); see also Alexandra Natapoff, Snitching: The Institutional and Communal Consequences, 73 U. Cin. L. Rev. 645, 652 (2004).
Constitutional regulation of informants. The U.S. Constitution imposes some limited constraints on the use of informants, but those constraints do not for the most part address squarely any of the harms discussed, nor do they require or work to encourage the practices set out in this Chapter regarding sound policy.
Under the Fourth Amendment, the U.S. Supreme Court has permitted the use of recordings by informants to obtain statements without knowledge of the speaker, and the Court has found no self-incrimination rights implicated by a voluntary statement to an informant. See, e.g., Lee v. United States, 343 U.S. 747 (1952); Hoffa v. United States, 385 U.S. 293 (1966); United States v. White, 401 U.S. 745 (1971). Moreover, the government may deploy jailhouse informants to obtain information against individuals without constraint from the Fourth, Fifth, or Sixth Amendments, as long as the target has not yet been charged. Illinois v. Perkins, 496 U.S. 292 (1990). Once the suspect has been charged formally, the Sixth Amendment right to counsel may be violated if an informant is engaged to elicit self-incriminating comments. Massiah v. United States, 377 U.S. 201 (1964); see also Brewer v. Williams, 430 U.S. 387 (1977) (finding the Sixth Amendment right triggered after arraignment on outstanding arrest warrant); United States v. Henry, 447 U.S. 264 (1980). Still, the Supreme Court has held that when statements to an informant were spontaneous and unsolicited, then no such constitutional protection applies. Kuhlman v. Wilson, 477 U.S. 436, 459 (1986). Moreover, any error in admission of such testimony may be found to be harmless error. Arizona v. Fulminante, 499 U.S. 279, 307 (1991). Other constitutional criminal-procedure rights may be implicated by active criminal informants; for example, there may be available a “relatively limited” defense of entrapment. United States v. Russell, 411 U.S. 423, 435 (1973).
The reliability issues posed by informant use are not addressed well by constitutional criminal-procedure rules. In general, the U.S. Supreme Court has emphasized that cross-examination may bring out any unreliability in informant statements. Hoffa, 386 U.S. at 311 (“The established safeguards of the Anglo-American legal system leave the veracity of a witness to be tested by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury.”); Christopher Slobogin, Criminal Procedure: Regulation of Police Investigation: Legal, Historical, Empirical, and Comparative Materials 525 (4th ed. 2007). The intrusiveness issues raised in this Chapter similarly are not addressed well by constitutional criminal-procedure rules; they do not address, for example, the potential chilling effects on community groups and expression.
Nor are the public-safety risks clearly addressed by constitutional criminal procedure. The Supreme Court has held that the government generally does not have an obligation to minimize known risks to a person absent a “special relationship,” such that government’s assistance or role in “creating the danger to the victim,” as well as its failure to protect, creates a “shock to the conscience.” DeShaney v. Winnebago County, 489 U.S. 189 (1989); Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005). Thus, if members of the public, or the informant, are harmed by ongoing criminal activity that law enforcement may have been in a position to prevent, liability still may not exist. Courts have held that even if a witness has an established relationship with law enforcement, and the agency has notice of threats of harm to the witness and offered to provide protection, there is no liability for third-party violence. Rivera v. City of Providence, 402 F.3d 27 (1st Cir. 2005).
Due-process rules regarding the disclosure of exculpatory and impeachment evidence apply to informant testimony. In Giglio v. United States, the U.S. Supreme Court held that “nondisclosure of evidence affecting credibility” of a witness falls within the due-process rule that prosecutors may not suppress “material evidence.” Giglio v. United States, 405 U.S. 150, 153-154 (1972) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963) (internal quotation marks omitted)). However, the Court has not mandated any particular best practices concerning maintaining and documenting information about the use of informants or other incentivized witnesses, nor best practices concerning discovery. More broadly, the Court has held that Giglio disclosure obligations apply when defendants go to trial, but not when they plead guilty. United States v. Ruiz, 536 U.S. 622 (2002). Because approximately 95 percent of all felony convictions in the U.S. are the result of a plea, the effect of this ruling is to exempt the majority of informant-related impeachment evidence from discovery. Further, the Court has held that agencies need not disclose the identities of informants who provided information used to support probable cause. McCray v. Illinois, 386 U.S. 300 (1967). Indeed, the identity of an informant even may be kept confidential at trial. Roviaro v. United States, 353 U.S. 53 (1957).
Commentators have long criticized the overuse and under-regulation of police informants, and have called for additional constitutional protections in the area. Geoffrey R. Stone, The Scope of the Fourth Amendment: Privacy and the Police Use of Spies, Secret Agents and Informers, 1976 Am. B. Found. Res. J. 1195, 1195-1196; James J. Tomkovicz, An Adversary System Defense of the Right to Counsel Against Informants: Truth, Fair Play, and the Massiah Doctrine, 22 U.C. Davis L. Rev. 1, 3 (1988); Welsh S. White, Regulating Prison Informers Under the Due Process Clause, 1991 Sup. Ct. Rev. 103, 103-106; Jana Winograde, Jailhouse Informants and the Need for Judicial Use Immunity in Habeas Corpus Proceedings, 78 Cal. L. Rev. 755, 782-785 (1990); Evan Haglund, Note, Impeaching the Underworld Informant, 63 S. Cal. L. Rev. 1405, 1440-1441 (1990). However, existing constitutional law provides only limited regulation in the area and very little guidance to policing agencies.
In short, constitutional regulation is unlikely to be enough, either to provide remedies for unsound uses of informants, or to inform sound policing practices in the area. As is true throughout these Principles, a regulatory approach is necessary—one that calls for written policies governing the sound use of informants. A growing number of jurisdictions, through legislation or judicial rulings, require disclosures by prosecutors to the defense concerning informants; documentation of their use; reliability review by judges before trial; and that judges instruct jurors concerning reliability of informants. See, e.g., Tarrant County Criminal District Attorney’s Office Jailhouse Informant Procedure (2016) (creating central index of jailhouse informants); Conn. Gen. Stat. Ann. § 54-86o-p (requiring data collection, tracking, and reliability hearings for jailhouse informants); Fla. R. Crim. P. 3.220(b)(1)(M) (requiring the state to disclose material information affecting the credibility of an informant, whether in or out of custody, including any incentives for cooperation); 725 Ill. Comp. Stat. § 5/115-21 (2003) (requiring reliability hearings for in-custody informants); Neb. Rev. Stat. Ann § 29-4701-06 (requiring each prosecutors’ office to maintain records of any case in which informant statement or testimony is used, and disclose relevant information to the defense concerning the testimony or statement by a jailhouse informant); Tex. Code Crim. Pro. art. 2.024 (requiring tracking of use of testimony of persons in custody and any benefits offered or provided to such a person); Tex. Code Crim. Pro. art. 38.075 (requiring corroboration of an in-custody informant’s testimony before it can be used to support a conviction); Tex. Code Crim. Pro. art. 39.14 (h-1) (requiring state to disclose information relevant to the credibility of an in-custody informant); Okla. Sen. Bill 1385 (effective Nov. 2020) (requiring creation of statewide informant-tracking database); Dodd v. State, 993 P.2d 778, 784 (Okla. Crim. App. 2000) (Strubhar, J., concurring) (approving lower-court “reliability hearing” regarding informant evidence); D’Agostino v. State, 823 P.2d 283 (Nev. 1992) (holding that before “jailhouse incrimination” testimony is admissible, the trial judge must examine whether “the details of the admissions supply a sufficient indicia of reliability”). While reflecting some of these efforts to better define practices concerning informant evidence, this Chapter adopts a more comprehensive approach than any such statute, policy, or judicial ruling.