Texas Effectively Does Away with “Confidential Informants”

Posted on: January 21, 2014

Texas Effectively Does Away with “Confidential Informants”

The Constitutional Right to face one’s accuser has gradually faded over the years with a number of exceptions carved away by the courts. One has been the “Confidential Informant” exception. Until now all the police had to say was they had a “confidential and reliable informant that had previously supplied credible information” and they could use whatever information they claimed the informant had told them as the basis of obtaining a search warrant and never have to disclose the identity of the informant.

SB1611–The Michael Morton Act which revolutionizes criminal discovery in Texas took effect Jan. 1. The act does several things, all of them helpful to the defense of someone accused.

Perhaps the best, it makes the use of confidential informants by law enforcement almost impossible, because the state is now obliged to turn over to the defense all witness statements, recordings, etc. that contain “evidence material to any matter involved in the action . . . .” Even if the state has no intention of using a witness’ testimony at trial, the defense still has an absolute right to the witness’ statement.

For the past half century, defendants have had the right to all “exculpatory and mitigating evidence in the state’s possession.” In other words, IF in the prosecutor’s judgment, they were in possession of evidence that tended to exonerate or mitigate a defendant they were required to turn it over. With a former Texas prosecutor (in the Michael Morton case) having been recently convicted for withholding just such evidence came SB 1611. SB 1611 expands that right to now include all “material evidence,” which includes incriminating evidence. No longer are prosecutors able to pick and choose what evidence is turned over to the defense.

The heart of SB 1611, and that which is fatal to the use of “Confidential Informants” is Sec. 2 (a) which reads: ” . . . as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photography by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.”

Now, they must turn over everything. Ending the use of confidential informants is not the only outstanding aspect of this bill. By creating a right for defendant’s to have all “evidence material to any matter involved in the action,” it creates the opportunity for judges to suppress valuable testimony because a witness’ statement was not sent to the defense in a timely manner. It took the imprisonment of an innocent man and the jailing of an unscrupulous prosecutor to level the playing field for the criminal defendant. Of course they still must select an attorney that is diligent in making a global request and scrutinizes the information received.

By: David B. Sloane, Attorney
Public Information Officer for DFW NORML