There seams to be a lot of confusion out there in regard to the expectation that confidential informants are the same as witnesses and should be used as such. Unfortunately much of that confusion comes from both prosecutors and police, two groups that really should know the difference. So here are a few simple comments to aid understanding:
Confidential informants should be kept confidential - the clue is in the word ‘confidential.’ A doctor keeps patient records confidential, she doesn’t post them on the internet for all to see.
A witness testifies in court. It is a standard part of the criminal justice system in most jurisdictions that their identity is disclosed, albeit in some cases their identity is protected.
The identity of a confidential informant is protected in law except under specific circumstances. The burden shifts to the defense as to why it should be revealed.There are a very limited number of exceptions.
Law enforcement are legally obliged to take reasonable measures to protect the identity of confidential informants from being exposed. Poorly written warrants that expose the source or forcing them to testify is not protecting them. Neither is buying them a bus ticket out of town.
As a general rule someone who has been managed as a confidential informant should never be asked to testify. The risk of their role in previous cases is then exposed for no benefit.
A prisoner who is providing testimony against a fellow inmate is a witness. Defense lawyers love to destroy their credibility by using the jailhouse snitch term.
Where a prisoner is to be used as a witness all police contact with them from beginning to end should be presented to the court including any benefits they will obtain as a result of testifying. Pretending they are an informant often hinders this process.
Both prosecutors and police need training in this area. All to often confidential informants are exposed because those involved don’t know how to protect them.
Informants are people. Far too often police and prosecutors want what the evidence they can provide but then treat them like they are sh*t on their shoe. Hard to expect a jury to believe them if the officials involved treat them with contempt.
If you want evidence get a witness. If you want information get a confidential informant. Know what you want. Work to get it. Anything else is lazy and unprofessional.
