Thursday, January 22, 2015

Criminal Law: Discovery Of The “Informant Witness”

By Matt Luka

A jailhouse informant testifying to a defendant's purported confession is often the most powerful evidence in a criminal trial. After all, how can we expect a jury to ignore the defendant's own words? Such witnesses can be difficult to cross-examine, particularly without a sufficient opportunity to prepare. 

According to the Innocence Project, of the exonerees released from death row, 45.9 percent were convicted, in part, due to false informant testimony. In re Amend. to Fla. R. Crim. P. 3.220, 140 So. 3d 538, 540 n.3 (Fla. 2014). Further studies have shown that informant perjury was a factor in nearly 50 percent of wrongful murder convictions. Id.

In response to that troubling reality, the Supreme Court of Florida recently amended Florida Rule of Criminal Procedure 3.220 to include more detailed disclosure requirements for informant witnesses. Id. at 539. The amendment adds as a new subset of Category A witnesses: informant witnesses, whether in custody or not, who offer testimony concerning the statements of a defendant about the issues for which the defendant is being tried. Id. at 540 (Appendix). This amendment encompasses not just "jailhouse informants" but any informant who testifies about a defendant's statement.  

In addition to the identity and address of the informant witness, the state must disclose whether it has “any material or information that has been provided by an informant witness,” which includes: (i) the substance of any statement allegedly made by the defendant that the informant witness may testify about; (ii) a summary of the informant witness's criminal record of the; (iii) the time and place the defendant's alleged statement was made; (iv) whether the informant witness has received, or expects to receive, anything in exchange for his or her testimony; (v) the informant witness's prior history of cooperation, in return for any benefit, as known to the prosecutor. Id. at 539. 

The amendment is not intended to limit in any manner the discovery obligations otherwise provided for under Rule 3.220. Id. at 539. Because informant witnesses are Category A witnesses, Rule 3.220(h)(A) permits a deposition of the witness without leave of court. However, the Rule 3.220(g) confidential informant privilege still applies. This could create conflict between the two sections of the rule depending on how the state uses the informant. 

One question that may arise is whether the state has an obligation to identify an informant witness if the witness is not expected to testify at trial but provided information that led to the discovery of other evidence such a probable cause for a search warrant. Typically, an informant who only provides supporting information, such as probable cause for a warrant, does not need to be disclosed absent a showing by the defendant of an exemption to the confidential informant privilege. See State v. Powell, 140 So. 3d 1126, 1131 (Fla. 5th DCA 2014). However, the Second District Court of Appeal recently held that the state's discovery obligation for Category A witnesses is not limited to witnesses and evidentiary materials that it intends to present at trial. State v. Fernandez, 141 So. 3d 1211, 1222 (Fla. 2d DCA 2014). Although the "informant witness" amendment is limited to witnesses "who offer testimony," an accuser who makes a formal statement to government officers, even if out-of-court, also offers testimony. See Crawford v. Washington, 541 U.S. 36, 51 (2004). The answer to this question may lie in Florida's adherence to the purpose and spirit of the discovery rules to avoid surprise and trial by ambush. Scipio v. State, 928 So. 2d 1138, 1144–45 (Fla. 2006) (citations omitted).