The confidential informant walks a thin line, and expressions like “snitches get stitches” may be putting it lightly. Last night’s episode of Drugs, Inc. followed a drug dealer as he attempted to hunt down a CI. The CI can be a vital part of criminal investigations, especially in identifying individuals involved in criminal enterprises. But CI’s can also face an incredible amount of danger if outed, and often pose various ethical issues to law enforcement, as CI’s can be looking for favorable treatment that law enforcement may not be able to provide.
This is all to say that the world of the CI is a murky gray area that can be treacherous for all involved. Here are the basics:
What is a CI?
The definition of a CI is relatively simple. According to PBS, a confidential informant is any individual who provides useful and credible information to a law enforcement agency regarding criminal activities.
That sounds like a witness. Is there a difference?
There’s a big difference. The role of a CI can be contrasted with that of a cooperating witness, or someone who is willing to testify and disclose evidence tied to their person. A CI’s identity will generally be protected by law enforcement.
Why does a CI get to stay anonymous, while a witness has to be identified in a criminal case?
It’s all about the type of information that a CI provides.
CI’s have certain protections under the law that generally allow them to provide evidence without testifying or be named by the prosecution. This is only possible if the CI is providing information that is not directly relevant to the crimes enumerated by the prosecution. That is, the CI will generally tip off the police to crimes being committed, and perhaps when they are being committed. And while this may get the case moving, it does not directly prove a criminal’s guilt.
A witness, in contrast, may provide crucial information that a case is built on. Therefore, the prosecution needs the witness to prove guilt in a way that it does not need the informant to do.
There are also different types of CIs, depending on the informants involvement with the crime in question. According to NOLO, most CI’s are classified as “mere informants,” or individuals who point out others who are involved in crimes, but are not involved in the crime itself. Mere informants generally help alert authorities to wrongdoing, but do not provide the backbone of the case, and therefore aren’t usually forced to testify.
That makes sense. Do courts ever reveal a CI’s identity?
It depends. To mount a defense, a defendant is allowed to know the evidence brought against them. This includes the witness list. Courts are generally protective of CIs and grant them some legal “privilege” not to disclose information that may compromise their identity depending on their circumstances. According to NOLO, CI’s can remain anonymous in the trial if the defendant is not already aware of the CI’s identity, if the CI did not participate directly in the crime and if the CI is not providing direct evidence that can’t be obtained from other sources in the case.
However, this is not set in stone. If a defendant can demonstrate a CI’s importance in proving the defendant’s innocence, the court will occasionally waive the CI’s privilege. Conversely, CI’s who are allowed to remain anonymous also don’t provide evidence that that definitively prove a defendant’s guilt – if the prosecution or defendant’s case hinges on the information provided by a CI, their identity must be disclosed in order for the case not to be dismissed.
Why does a CI decide to “rat” on a criminal?
No confidential informant is the same, and motivations for sharing information with the police are varied. CI’s can also be regular individuals concerned about information that they’ve come to possess about a crime. But motivations are often the stuff of television police drama – money, revenge, a quasi-legal immunity through reduced sentencing or leniency.
Some of that sounds….morally dubious (at least, from a law enforcement POV).
Sometimes it is. Some law enforcement agencies struggle with the use of CI’s, as the way that CI’s obtain information about crimes is often through association. CI’s themselves are often criminals – according to a 2011 report in USA Today, the FBI allowed informants to break the law at least 5,658 times in one year, averaging about 15 crimes a day. In 2007, the FBI wrote in a budget request that there were 15,000 CI’s working for the agency.
Police Chief Magazine notes the hesitation officers feel when paying CI’s that they know are drug users, as they feel that they may be sustaining the markets that they are attempting to defeat. Some officers struggle with the knowledge that CI’s are being allowed to break the law or suffering lesser sentences for cooperation. Such is the complicated nature of policing.
Are there other downsides to using CI’s?
Many law enforcement officials think so.
Legally, information obtained from CI’s can be a bit more difficult to use in a trial. According to Police Chief Magazine, “defense attorneys frequently use entrapment as a defense in drug cases assisted by informants.” Law enforcement risks entrapment if they induce an individual to commit a crime that they otherwise wouldn’t have committed. Former D.C. Mayor Marion Barry famously attempted an entrapment defense to no avail when he was outed for cocaine use in the early 90s’. This is why the most valuable CI is one that can lead law enforcement to crimes, but not directly involve the CI in them, risking entrapment or a need to disclose the informant’s identity in a trial.
Further, officials are often wary of exaggerated or falsified information – CI’s understand that working with law enforcement can be advantageous, and exploitation is not unheard of. Law enforcement often works to corroborate the information obtained by CI’s, as this helps to not only shield the CI from being forced to testify as a witness and helps to ensure that the investigation isn’t being fed false information.