Narcing On The Narc: Identifying Confidential Informants In Virginia
Defendants in Virginia criminal cases have very limited discovery rights. While in other states a defendant may be entitled to things like police reports, Virginia provides no right to discovery beyond the minimum that is required for due process under the U.S. Constitution—namely, the right to disclosure of exculpatory evidence.
While there are certainly Commonwealth’s Attorneys offices that practice “open file” discovery, and readily provide information to defense attorneys contained within police reports and witness statements that they are not required to disclose, not every office practices that way. Furthermore, unless the evidence is known by the defense to exist, it is up to the Commonwealth’s Attorney and their judgment to determine what evidence is exculpatory and subject to disclosure absent a court order.
As you can imagine, we defense attorneys have the goal of obtaining as much information as possible in order to ascertain exactly what evidence the Commonwealth has against our clients. We often file discovery motions to protect our client’s rights and compel the Commonwealth to produce evidence. In order to ask the Court to order the Commonwealth to turn over evidence in their possession, we often must be able to articulate why that evidence is exculpatory.
Consider a typical narcotics case where law enforcement has used a confidential informant to conduct a controlled buy with the defendant. The Commonwealth will want to protect the identity of the confidential informant so that they can continue to be used by police. However, the testimony of that informant could be very helpful to defending the allegations against the defendant. How does the defense go about getting that information?
As a general rule, the identity of a confidential informant is privileged information, and not something the Commonwealth must share with the defense. This privilege exists both to protect the confidential informant and also the public’s interest by supporting the efforts of law enforcement. The privilege protects the public interest because unnecessarily revealing the identity of a confidential informant forces the retirement of the informant and can affect any open investigations for which police may be using the informant.
However, the public interest purpose of this privilege is outweighed where “disclosure of an informant’s identity….is relevant and helpful to the defense of an accused, or is essential to a fair determination of cause, [and thus] the privilege must give way.” Rovario v. United States, 353 U.S. 53, 60-61 (1957). For the privilege to give way and the court to order disclosure, a defendant must present more than mere speculation as to the usefulness of an informant’s identity. Stephenson v. Commonwealth, 18 Va. App. 247, 251 (1994). This means that the court considers the significance of the informant’s testimony when assessing whether to order disclosure.
How significant would the informant’s testimony have to be? There is a distinction between the possible significance of an informant’s testimony when that informant is a “mere tipster” versus actually being an “active participant in the offense.” United States v. Price, 783 F.2d 1132, 1138 (4th Cir. 1986). An informant acting as a tipster who only supplies information is not considered “essential in preparing the defense of the accused.” Keener v. Commonwealth, 8 Va. App. 208, 213 (1989) (quoting McLawhorn v. North Carolina, 484 F.2d 1, 5 (4th Cir. 1973)). However, “where the informant is an actual participant and thus a witness to material and relevant events, fundamental fairness dictates that the accused have access to him as a potential witness…[and] disclosure of the informant’s identity is required.” Price, 783 F.2d at 1138 (quoting McLawhorn, 484 F.2d at 5.)
Thus, to force disclosure of the identify of the informant in a drug case, the defense must argue that the informant is an important witness because they were actively involved in the transaction. The informant didn’t merely provide a fact or tell law enforcement where the buy was going to occur. Rather, the informant was there and could therefore testify to what happened or did not happen. Where the Commonwealth is using a confidential informant in this kind of situation, the defendant has a right to know about that information and use it to defend him or herself.
Given our discovery rules, criminal lawyers in Virginia must be proactive about obtaining information on behalf of their clients. Particularly in situations like that of confidential informants whose identity is protected by a privilege, defense attorneys must know how to argue for access to that information. Having a defense attorney who is knowledgeable of the rules and how to use them can certainly make the difference in mounting a strong defense.