Addressing the use of confidential informants in criminal cases, P.1

Law enforcement uses all kinds of strategies to further investigatory efforts. One of the tactics used in criminal investigations is to work with confidential informants who can provide access to evidence that would be otherwise difficult to obtain.

As effective as the use of confidential informants may be in criminal investigatory work, one of the problems with the tactic is that allowing, even authorizing, criminal activity to continue as part of a criminal investigation can have unintended consequences, such as putting citizens at risk of physical or financial harm.

In addition to the risks, there is also the cognitive dissonance of law enforcement authorizing criminal activity. According to a recent review of federal documents, the FBI alone authorized informants to break the law nearly 23,000 times between 2011 and 2014. That number does not take into account the well-known fact that informants sometimes engage in criminal activity without the authorization of the agents handling them.

From a criminal defense perspective, one of the issues that can arise regarding the use of confidential informants in the criminal process is whether a confidential informant can be used to establish probable or reasonable suspicion for a search or investigatory stop. Some of the issues a defendant needs to explore when a confidential informant was used in criminal investigation is the reliability of the informant, how he or she obtained the knowledge shared with law enforcement, whether the information shared by the informant is backed up by information already known or later learned by law enforcement.

In our next post, we'll continue looking at this issue, and why an experienced criminal defense attorney is necessary when these issues are at play in a criminal case.

Source: www.mdcourts.gov, Shaun D. Lindsey v. State of Maryland, Court of Special Appeals of Maryland, 2015.