In our last post, we began looking at the use of confidential informants in the criminal process. As we noted, one of the issues that needs to be explored in building a criminal defense case when a confidential informants is involved is whether officers were right in relying on information provided by the informant to justify a search or investigatory stop.
As we noted, reliability, basis of knowledge and independent corroboration are all important factors in determining whether officers had probable cause or reasonable suspicion. Another potentially important issue is whether the defendant has the right to disclosure of the informant’s identity.
Under Maryland law, the state does have an interest in protecting the identity of informants and the state is not required to disclose the identity of an informant unless prosecutors plan to call the informant as one of its witnesses. Disclosure may also be warranted in cases where failure to disclose the informant’s identity would violate the constitutional rights of the defendant. The state’s privilege of informant confidentiality is limited by a defendant’s interest in a fair trial.
In some cases, knowing the identity of a confidential informant is necessary to prepare an adequate defense, particularly with respect to the issues discussed in our last post: whether law enforcement had probable cause to make an arrest or reasonable suspicion to conduct an investigatory stop.
Navigating these issues in a criminal defense case is not necessarily easy, and it is important to work with an experienced criminal defense attorney. This is especially true in cases where law enforcement may have had an inadequate basis for relying on an informant’s information.
Source: Maryland Court Rules, Rule 4-262 (g)(2)