Statements As Hearsay

Out-of-court statements by an informant are generally hearsay if offered for the truth of the matter asserted.  Where, however, the informant is shown to be an agent of the police by virtue of the degree of supervisory control over the informant, the informant’s statments may be admissible against the prosecution as an agent’s admissions.{footnote}But see Lippay v. Christos, 996 F.2d 1490 (3d Cir. 1993)(finding no agency relationship). {/footnote}  Statements made to a law enforcement officer are not hearsay if offered to show why an investigation was initiated, but will be excluded as irrelevant where the reason for the investigation is immaterial.{footnote}United States v. Mancillas, 580 F.2d 1301 (7th Cir.), cert. denied, 439 U.S. 958 (1978)(drug prosecution).{/footnote}

Privilege from Disclosure

The prosecution is not required to disclose the identity of an informant who merely provides information helping to establish probably cause for arrest or relating to a Fourth Amendment search-and-seizure issue.{footnote}McCray v. Illinois, 386 U.S. 300 (1967); United States v. Herrero, 893 F.2d 1512 (7th Cir. 1990)(privilege also protects statements which would reveal informant’s identity); United States v. Andrus, 775 F.2d 825 (7th Cir. 1985); Cal. sec. 1041. {/footnote}  On the other hand, if there is a reasonable possibility that the informant has information that goes to the merits of the case, it may violate the defendant’s sixth and fourteenth amendment rights to withhold the informant’s identity.{footnote}Roviaro v. United States, 353 U.S. 53 (1957)(identity of informant who allegedly bought drugs from plaintiff); United States v. Scafe, 822 F.2d 928 (10th Cir. 1987).
{/footnote}

Doubts as to the materiality of the witness must be resolved in favor of disclosure.  Disclosure will be required where there is a "reasonable probability" that the informant possesses exculpatory evidence.{footnote}Honore v. Superior Court, 70 Cal. 2d 162 (1969).
{/footnote}  In addition, if the court is not satisfied with the reliability of the informant who the prosecution claims provided probable cause for an arrest or search, the court may order disclosure of the informant’s identity in camera.{footnote}United States v. Jackson, 384 F.2d 825 (3d Cir. 1967); Cal. sec. 1042.{/footnote}

Preliminary Hearings.  In McCray v. Illinois, the Supreme Court held that disclosure of an informant’s identity was not required at preliminary hearings to determine probable cause so long as the informant appears reliable and the information credible.{footnote}386 U.S. 30 (1967).  {/footnote}  The Second Circuit, however has held that disclosure is required whenever the informant’s information constitutes the bulk of the prosecution’s evidence.{footnote}United States v. Commission, 429 F.2d 834, 838-39 (2d Cir. 1970).{/footnote}

Civil Actions.  The government’s informant’s privilege applies in civil cases,{footnote}Dole v. Local 1942, International Brotherhood of Electrical Workers, 870 F.2d 368 (7th Cir. 1989).{/footnote} and is even stronger in that context.{footnote}Westinghouse Electric Corp. v. City of Burlington, 351 F.2d 762 (D.C. Cir. 1965).{/footnote}

Effect of Informant’s Identity Becoming Known.  If the identity of the government’s informant is somehow revealed, the evidentiary privilege may no longer apply.{footnote}Check United States v. Herrero, 893 F.2d 1512 (7th Cir. 1990).

But see United States v. Smith, 780 F.2d 1102 (4th Cir. 1985)(location of informant may be protected even if defendant knows informant’s identity).{/footnote}

Testimony at Trial

The government has no obligation to make an informant available to be examined by the defendant at trial where the informant will not be testifying for the prosecution.{footnote}United States v. Porter, 764 F.2d 1 (1st Cir. 1985); United States v. Francesco, 725 F.2d 817 (1st Cir. 1984).{/footnote}

Paid Informants.  That an informant has been paid by the government for his or her cooperation goes to the weight, but not the admissibility of the informant’s testimony.{footnote}Lujan v. United States, 348 F.2d 156 (10th Cir. 1965).{/footnote}  Some courts, however, have held inadmissible the testimony of informant who are paid a contingent fee based on whether the defendant is convicted.{footnote}United States v. Durham, 413 F.2d 1003 (5th Cir. 1969); Williamson v. United States, 311 F.2d 441 (5th Cir. 1962).

Contra United States v. Grimes, 438 F.2d 391 (6th Cir.____); Check United States v. Garcia, 528 F.2d 580 (5th Cir. 1976).{/footnote}