In our last post, we mentioned a report recently released by the federal Drug Enforcement Administration which found that the agency has essentially had poor management and control over its use of confidential informants. Not only does the report highlight the waste of resources resulting from its lack of solid policies for managing informants, which amounts to millions of dollars over less than five years, but there is also the fact that the DEA has not had an objective way to measure the reliability of its informants.
Supposedly, the agency has since adopted policies which address the problems highlighted in the report, but there is no guarantee that any law enforcement agency will always do a good job policing itself. Of particularly concern, from a criminal defense perspective, is the reliability of confidential informants, especially when they have been used as the basis of obtaining search warrant or otherwise furthering an investigation.
One of the situations that can come up with the use of confidential informants is whether police had probable cause to obtain warrant based on a confidential informant’s tip. There are specific rules the courts have established to determine when law enforcement is justified in using such information to conduct searches and seizures, and this can sometimes be an important issue in building a strong criminal defense case.
Courts will look at a handful of factors when assessing the reliability of a confidential informant. For one thing, there is the issue of whether the informant has a reputation for truthfulness. With anonymous tipsters, it is not possible to know this, but confidential informants are very often individuals who do not, in fact, have a great history of telling the truth. If the informant has provided accurate information in the past, this may increase his or her credibility, depending on other factors.
In our next post, we’ll continue looking at this topic, and what an experienced criminal defense attorney can do to scrutinize the reliability of confidential informants in a criminal defense case.
Source: Findlaw Blotter, “Are Confidential Informants Credible? 5 Factors Courts Will Consider,” Brett Snider, Sept. 11, 2014.