Wednesday, April 1, 2015

Criminal Law: Inducements to an Informant Witness

By Matt Luka

In the last edition of the Lawyer magazine, we addressed the Florida Supreme Court's amendment of Florida Rule of Criminal Procedure 3.220 regarding disclosure of informant witnesses. In re Amend. to Rule of Crim. Proc. 3.220, 140 So. 3d 538 (Fla. 2014).  Among the information to be disclosed is whether the informant witness has received, or expects to receive, anything in exchange for his or her testimony, as well as the informant witness's prior history of cooperation, in return for any benefit, as known to the prosecutor. Id. at 539. Identifying all potential inducements to the informant witness is a critical part of preparing an effective cross-examination, and the rule compels a broad range of material.

In considering the benefits afforded an informant, the term “anything” includes but is not limited to any deal, promise, inducement, pay, leniency, immunity, personal advantage, vindication, or other benefit that the prosecution, or any person acting on behalf of the prosecution, has knowingly made or may make in the future. Id. at 539-540. A promise "knowingly made" would seem to eliminate from disclosure expectations an informant may unilaterally hold. However, the text of the rule contemplates benefits the witness "expects to receive." If you are able to depose an informant witness, consider questions about the witness's personal expectations because they may differ from those disclosed by the state and may be based on something unknown to the prosecutor but known to law enforcement or the like.

Importantly, the benefits to be disclosed are not just those related to the present case in which the witness is expected to testify. The state is obligated to disclose benefits it "may make in the future," which denotes benefits that are being contemplated but not yet offered to a witness. This could also include anticipated benefits for assistance in future cases. Often, the benefits available to an informant may be intangible benefits such as a one-time or a continuing relationship with law enforcement. State v. Fernandez, 141 So. 3d 1211, 1221 (Fla. 2d DCA 2014). The rule also requires disclosure of past cooperation and benefits. By including past and future benefits, the rule reaches all inducements that could influence the witness's testimony.

As discussed in the previous article, distinguishing between a confidential informant and an informant witness significantly alters the disclosure required. The state has historically owned a limited privilege to withhold the identity of confidential informants, those who provide law enforcement officers with information about criminal activity. State v. Burgos, 985 So. 2d 642, 644 (Fla. 2d DCA 2008). The burden is on the defendant claiming an exception to the rule to demonstrate that an informant's identity or the content of the informant's communication would be relevant and helpful to a specific defense or “essential to a fair determination of the cause at issue.” Id.; see also Fla. R. Crim. P. 3.220(g)(2).  Mere speculation or bare allegations justifying disclosure are insufficient to overcome the privilege. Burgos, 985 So. 2d at 645. However, if the defendant is faced with the Catch–22 of not knowing the relevance of the informant without the information protected by the privilege, consider asking the court to require the state to produce the informant for an in-camera hearing at which the trial court could evaluate whether disclosure of the informant was essential to a fair determination of the cause. Id.