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When Does The State Need To Disclose The Identity Of A Confidential Informant In A Criminal Case?

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When Does The State Need To Disclose The Identity Of A Confidential Informant In A Criminal Case?


Police often rely on “confidential informants” to help them gather evidence of potential criminal activity or to identify suspects. In general, Texas prosecutors do not have to disclose a confidential informant’s identity to a defendant. This is considered privileged information. There is an exception to the privilege, however, if the trial judge determines “a reasonable probability exists that the informer can give testimony necessary to a fair determination of guilt or innocence.”

If this exception applies, the court can order the prosecution to disclose the confidential informant’s identity. If the state refuses, then the court is required to dismiss the charges to which the informant’s testimony “would relate.”

CCA: Prosecution Must Disclose Under 508 Even if the Informant Has Incriminating Information

As the Texas Court of Criminal Appeals (CCA) recently observed, the defendant’s burden when invoking this rule–known as Rule 508–is “not a high one.” Basically, all the defendant needs to show is that the unidentified informant has information that “may be important” to the case. Put another way, the defense does not need to prove the informant necessarily has information that would confirm the defendant’s innocence.

Indeed, in the case decided by the CCA, State v. Lerma, the trial court actually granted the defense’s motion for dismissal under Rule 508. Here is a brief explanation of what happened. A law enforcement drug task force conducted a controlled drug buy using a confidential informant. The seller was a man named Espino. Three months after this exchange, the defendant in this case was part of a group that allegedly tried to rob Espino and his roommate. In the course of this robbery attempt, the roommate shot and killed Espino.

Prosecutors charged the defendant with capital murder in Espino’s death, apparently based on the theory that his actions in participating in the robbery somehow caused the roommate to accidentally shoot and kill Espino.

After learning about the controlled drug buy three months prior to Espino’s death, the defense wanted to know the identity of the confidential informant. Because Espino was never actually charged with that drug sale, the defense suspected that Espino was actually another informant. This would have given the roommate, who was also a drug dealer, a motive to intentionally kill Espino, using the robbery as cover to make it look unintentional.

The prosecution refused to disclose the informant’s identity, citing privilege under Rule 508. The trial court agreed with the defense, however, and ordered the state to disclose the informant’s identity. When the state refused, the trial court dismissed the murder charge against the defendant.

An intermediate appellate court later held the trial judge acted improperly in relying on “speculation that the informant had exculpatory information instead of evidence in the record.” The intermediate court therefore reversed the dismissal. But the CCA said the trial court acted within the bounds of its discretion and said the dismissal stood. The CCA noted that the defense was not required to prove the informant had exculpatory information. Indeed, Rule 508 clearly states that identity must be disclosed even if the informant has evidence of the defendant’s guilt.

Contact Texas Criminal Defense Lawyer Keith B. French Today

The CCA’s decision reaffirms an important protection for any person charged with a crime where a confidential informant’s testimony may prove relevant. If you are facing serious charges and need legal representation from an experienced Pearland criminal defense attorney, contact Keith B. French Law, PLLC, today to schedule a case evaluation.


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