Must Prosecutors Name Confidential Informants?

Texas law enforcement often relies on “confidential informants” to assist them in making drug arrests. By law, the prosecution may continue to keep the identity of these informants secret from the defendant during trial, unless the judge determines there is a “reasonable probability” that the informant can offer testimony “necessary to a fair determination of guilt or innocence.” Before the judge applies this exception, however, they must first hold a hearing outside the presence of the jury to determine if reasonable probability exists.

Defendant in Meth Case Failed to Tie Informant to Entrapment Defense

The burden is on the defendant–not the prosecution–to show that disclosure of a confidential informant is important or necessary to their case. A recent decision from the Texas Third District Court of Appeals, Hirst v. State, demonstrates how this burden can adversely affect a defendant’s ability to receive a fair trial. In this case, the defendant sought disclosure of an informant to help the defendant prove he was the victim of police entrapment. The trial judge, however, decided the informant’s testimony was not relevant enough to warrant disclosure of their identity.

To give some additional background, a grand jury indicted the defendant for “possession with intent to deliver” methamphetamine. At a subsequent pre-trial hearing, the prosecution invoked privilege to withhold the identity of a confidential informant. A police officer testified that he applied for a search warrant of the defendant’s motel room based on information he received from the informant regarding “drug activity.” The officer said the informant was not present during the actual search, however, and it was that search that uncovered evidence of drug possession with intent to deliver.

As the Third District explained, the use of a confidential informant’s statements to help law enforcement obtain a search warrant is not, in and of itself, sufficient grounds to require disclosure of the informant’s identity to the defense. It would be different, the Court observed, if the informant were an eyewitness or participant to the alleged crime. But the mere fact that officers relied on the informant to establish the “probable cause” necessary to obtain a search warrant did not make the informant’s testimony necessary towards the “fair determination” of the defendant’s guilt or innocence.

Additionally, the Third District said the defendant could not reasonably explain how disclosure of the informant’s identity would have helped him present a viable entrapment defense. This defense was based on the defense’s statement to police that another man allegedly left methamphetamine in his motel room, ostensibly to set up the defendant for the possession charge. Unfortunately, the appeals court said the defendant failed to present any evidence “that the informant might be the same person responsible for the methamphetamine.”

Speak with Houston Drug Crimes Defense Lawyer Tad Nelson Today

The use of confidential informants in drug cases remains a controversial practice. But for now, it remains a legal practice. So if you are facing serious drug charges and need legal advice or representation from an experienced criminal defense attorney in Houston, Galveston or League City, contact the Law Offices of Tad Nelson & Associates today by calling (281) 280-0100.