Secrecy vs. Justice
Video Transcript: Is the state required to disclose the identity of its confidential informants in a prosecution in the state of Oklahoma? I’m Oklahoma attorney James Wirth, and that is the question that we have.
Where we have the state of Oklahoma prosecuting a defendant and ultimately there is a informant to law enforcement who is part of that investigation or perhaps triggered that investigation that resulted in those charges, is the state required to disclose who that informant is? And the answer is no. Sometimes they are not. Yes, sometimes they are. So the question, the answer is maybe.
So despite the right that we have a right to confrontation under the United States Constitution, Oklahoma law says it does not have to be provided under all circumstances. And that has perhaps been interpreted at least by the Oklahoma Court of Criminal Appeals not to violate the constitutional rights.
So where do we start here? We can start with the Sixth Amendment. It says, “In all criminal prosecutions, the accused shall enjoy the right to, among other things, to be confronted with the witnesses against him.” That is the right to be able to see them in court, to cross-examine them, to ask them questions under oath.
That is a right in the US Constitution in order to protect due process, have fair trials. However, the state of Oklahoma has a law regarding the identity of informants, and it says, “The United States, state or subdivision thereof, has a privilege to refuse to disclose the identity of a person who has furnished information related to or assisting in investigation of a possible violation of the law to a law enforcement officer.” That is statutory. That is Title 12, section 2510. And it does note exceptions. “The following shall be exceptions to the privilege,” and it notes that you do have to disclose who the confidential informant is if it’s a witness for the government.
So if they’re going to be testifying against the person, then obviously that has to be disclosed. The other one, “If the information is required to be disclosed under the discovery rules in the state of Oklahoma,” which is for a criminal case Title 22, section 2002.
Reviewing that, there’s a couple where it may come up. One, they have to disclose law enforcement reports made in connection to the particular case. So obviously law enforcement reports are going to include that person’s name. However, I think you’ll find that the state is likely to argue that, yes, we have to turn over law enforcement reports, but we get to redact the name and identity of the informant in order to keep that confidential. So that’s not likely to provide help for you.
The other one, you’re entitled to discovery of any evidence favorable to the defendant if such evidence is material to either guilt or punishment. So that’s going to be one that may be relevant. If there’s anything that is relevant to this person’s identity about their credibility that may make a difference in determining whether somebody’s innocent or guilty, or what the punishment should be, then they’re entitled to that information under the discovery code in the state of Oklahoma. And therefore the state would not under those circumstances be able to refuse to disclose who the confidential informant is.
All right, the next one, information if it’s a material witness. All right, so if the state of Oklahoma suggests that the person is a material witness, which allows them to actually arrest the person, hold them in custody until they can be brought over to testify, that’s a material witness warrant. If the material witness, then obviously they’d have to disclose that just because it obviously previously said if it’s a witness for the government, they have to disclose that.
Next one. “If the information from an informant is relied upon to establish the legality of the means by which evidence was obtained, or the court or the defendant is not satisfied that the information was received from an informant reasonably believed to be reliable or credible.” Okay. So the state of Oklahoma has to demonstrate that informant is reliable and credible in order to not disclose who that person is. But how do you determine credibility without disclosing it?
Well, there’s a mechanism for that where a defendant or the court on their own can make an issue of this and the court can have a hearing in chambers on the record, but have that record sealed and not have the defendant or his attorney present for that in order to find out who it is. And then with that information, without an opportunity to be heard from the defendant, the court can determine whether the informant is credible and reliable, and therefore whether that information has to be disclosed as to the identity to let the defense separately look into the reliability and the credibility of that witness.
But the other issue in this same exception is the legality of the means by which the evidence was obtained and the court of the defendant, well, legality of the way the evidence was obtained. So a lot of times these confidential informants, they’re going to start the investigation. So they report a crime or say something occurred and then law enforcement gets involved. They start investigating. And you want to know how did this start? Why did this start? Where did this information come from? In order for a defendant to know that things were done properly, that their rights were not violated, particularly the Fourth Amendment rights, then they’ve got to know how that investigation began to make sure the laws weren’t violated. Were they illegally wire tapping, law enforcement, in order to start an investigation? Was there other improper means done by law enforcement that violated constitutional rights that are covered up by saying that it was through this confidential informant? “Oh, by the way, we can’t tell you who that is.” So that’s going to be an issue that you’re going to want to attack if you’re here, because I have seen cases where there are great concerns of parallel construction. Where essentially an investigation may have started illegally, so they do parallel construction to start the investigation another way in order to say it started there to hide the illegality of law enforcement so that evidence cannot be suppressed.
So if there’s any concerns regarding parallel construction or the legality by which an investigation took place in the beginning, that’s going to be an issue you want to address and you’re going to want a hearing on that, and then obviously want to file your motion in order to try to have the court require the state to disclose who the confidential informant is so you can do an investigation for the defense on that.
But in a lot of these circumstances, the court may find these exceptions don’t apply and that you’re not entitled. So it is possible in the state of Oklahoma for the court to essentially allow the state to not disclose that information. And that’s what happened in a recent case in the Oklahoma Court of Criminal Appeals, said, “Yeah, that’s fine,” that this person only started the investigation, they didn’t testify, their testimony wasn’t utilized in order to convict the person, so they didn’t have to tell the defendant who that was.
So if you’re dealing with this circumstance, obviously you’re going to want an attorney on your side and your question’s answered. Don’t just get information from a general video on the internet. You’re going to want to talk to an attorney privately and confidentially to get legal advice specific to you. To get that scheduled with a Tulsa criminal defense lawyer at my office, you go online to makelaweasy.com.
