Courts have long recognized the importance of the confidential informant in solving crime. Police gain information and leads from these informants that they may not be able to learn from other sources. If police reveal the identity of an informant, they may not get any more information from that person, and others may be afraid to serve as informants. Given the importance of CIs, courts have granted them privilege, which means that they don't have to be disclosed in the same way as other witnesses.
The general rule is that the prosecution doesn't have to disclose the identity of a confidential informant. However, this rule has many exceptions; if a criminal defendant can show the importance of the CI's identity to the case, it may be possible to find out who's been talking to the cops.
After a defendant has made a motion to reveal the identity of a CI, the court will evaluate the circumstances and evidence in the case, and then make a call about how important knowing the identity of the informant is to the defendant's defense.
Factors the court will consider in deciding whether a confidential informer's identity should be revealed include:. The court may also evaluate the extent to which the confidential informant was involved with the crime.
If the CI directly witnessed or participated in the criminal activity, then ordinarily the court will order disclosure. But if there is evidence of the crime from a source other than the CI, the court may decide to keep the informer's identity secret.
For example, say the police arrest Joe for embezzlement based on the information provided by a confidential informant, his accountant Ricky. Joe learns from the prosecution that the unnamed CI was involved in the embezzlement and is the main source of evidence for the prosecution. Joe argues that he needs to know the CI's identity. He claims that the documentation the CI provided the police is false, and that he needs the CI's identity in order to prove how it was falsified.
Given that Ricky's information is material to the case against Joe, and that the basis for it is an essential part of Joe's defense, a court might grant a motion to disclose the CI's identity.
But if Ricky was only one piece of the evidence against Joe, and the prosecution had other, independent evidence of Joe's criminal activities, then the court might decide it's not necessary to reveal Ricky's identity to Joe and his attorneys. The prosecution and police typically don't have to reveal the identity of an informant if they don't have it. The official said that Tier 2 OIA typically involves similar activities to Tier 1 OIA but drug amounts below the sentencing guidelines thresholds and with no significant risk of violence.
We surveyed Confidential Informant Coordinators to see if they believed case agents in their field offices were complying with the Guidelines' requirement to obtain the informant's written acknowledgement of instructions relating to authority to engage in otherwise illegal activity. We found that 15 of the 25 files, or 60 percent, reflected compliance deficiencies.
The deficiencies included OIA authorizations for sources who had not yet been registered as CIs, retroactive authorizations of OIA, authorizations of Tier 2 OIA that should have been denominated as Tier 1 and therefore required DOJ approval, insufficiently specific descriptions of OIA, failures to obtain the CI's written acknowledgment of instructions regarding the limits of OIA activities, and failures to provide required instructions.
Four of the 25 files, or 16 percent, indicate that sources were authorized by field supervisors to engage in Tier 2 OIA from 45 to days before the source was approved for conversion to a fully operational confidential informant.
Although these four files do not indicate when the OIA was actually performed, we consider this to be a Guidelines violation since the period during which the CI was authorized to engage in OIA preceded the period for which the CI was eligible to engage in OIA under the Guidelines.
Five of the 25 files that contained OIA authorization, or 20 percent, indicate that the field supervisors retroactively authorized confidential informants to engage in Tier 2 OIA anywhere from 17 to 63 days after the start of the authorization period. In these cases, field supervisors authorized the OIA retroactively to the first day of the day authorization period. The OIA in these cases included engaging in conspiratorial conversations in connection with a domestic terrorism investigation, engaging in telephone conversations and face-to-face meetings with targeted subjects of a drug trafficking investigation, and purchasing drug paraphernalia as a drug broker.
We could not determine from our limited file reviews the reason why the case agents sought OIA authority for the earlier period, whether the CIs in fact engaged in OIA prior to the retroactive authorization, or whether the field supervisors were aware of either the specific criminal activities that were retroactively authorized or the reason for the agents' delay in seeking approval.
We also identified two instances in which the FBI failed to obtain proper authorization from the U. Attorney with respect to Tier 1 OIA. Both matters originated in the same field office, and the OIA in question was treated as Tier 2. In the second case, the risk of violence justified the Tier 1 status. The files for 7 of the 25 CI files 28 percent that contained OIA authorizations did not include sufficiently specific descriptions of the authorized OIA in that they failed to specify the time period or "specific conduct" authorized.
The following table illustrates our findings regarding premature, retroactive, and insufficiently specific authorizations, and authorizations of persons for whom the FBI had no basis to authorize OIA. The FBI is required to notify either a U. Attorney or the head of a DOJ litigating component when a CI engages in illegal activity which was not previously authorized, known as unauthorized illegal activity or "UIA.
The Confidential Informant Guidelines require that notice of the unauthorized illegal activity be provided by the Special Agent in Charge of the field office operating the CI to the U. Attorneys' Offices or DOJ personnel. The FBI is not required to provide such notice when a state or local prosecuting office has filed charges against the informant for the illegal conduct, there is no clear basis for federal prosecution, and federal prosecutors have not previously authorized the CI to engage in Tier 1 OIA or been involved in an investigation that is utilizing the CI.
Of the informant files we examined during our review, we identified 12 instances, or 10 percent, where the CI engaged in unauthorized illegal activity. Attorney in 3 of the 12 cases. In 4 of the 12 cases, the CI case files did not include sufficient information for us to determine whether charges had been filed by state or local prosecutors following arrest of the CI, and thus it was not possible to determine whether the Guidelines' notification requirement was triggered.
Our review also found that neither the field nor FBI Headquarters typically monitors whether charges are filed by state or local prosecutors following a CI's arrest.
We identified one field office that did not have any forms to record the occurrence of unauthorized illegal activity. Attorney's Office. In two of the five cases, the FBI failed to provide any notification to the U.
Attorney's Office, in violation of the CI Guidelines. The UIA in these cases were a state arrest relating to purchasing heroin and a misdemeanor charge of manufacturing unauthorized records. The other three files contained documentation indicating that notice was provided to the U. Attorney as required by the Guidelines. Deactivation of Confidential Informants.
In our review of 46 informant files indicating that the informant had been deactivated, we found: 17 of the 46 files, or 37 percent, contained 1 or more deficiencies; there was no documentation in 15 of the 46 files 33 percent indicating that the CI was notified of the deactivation; in one CI file, there was no documentation that the field office coordinated with the Assistant U.
Attorney assigned to the matter regarding the deactivation; and one CI file had no documentation of the deactivation itself. As we discussed in Chapter Two, the significant revisions made to the Confidential Informant Guidelines in January changed the role of the U.
Attorneys' Offices with respect to the approval and management of confidential informants. Attorneys' Offices throughout the country. Ninety-one Criminal Division Chiefs or their designees responded to our survey in February The results show that the Criminal Division Chiefs are overwhelmingly satisfied with the FBI's communication with them regarding confidential informants. The survey results included the following: with respect to the FBI's obligation to obtain the U.
Attorney's advance written approval of Tier 1 OIA, the Criminal Division Chiefs said they were not aware of any circumstance when the FBI failed to comply since May 30, ; of the 27 percent of surveyed Criminal Division Chiefs who stated that confidential informants had been named in electronic surveillance affidavits in their field offices since May 30, , 88 percent told us that U. Attorneys' Offices have been notified in all appropriate cases; only 1 Criminal Division Chief cited as a serious concern the FBI's failure to notify the appropriate federal prosecutor of unauthorized illegal activity by confidential informants and failure to share information with the U.
Attorney's Office about confidential informants' activities in investigations in which the U. Attorney's Office is participating; and as a group, the Criminal Division Chiefs did not express concerns about receiving timely notice of unauthorized illegal activity by CIs operated in their Districts since May 30, However, 35 percent stated that the impact of unauthorized illegal activity by CIs has been either a minor or occasional concern since May 30, , while 25 percent reported that notice deficiencies have been either a minor or occasional concern.
In addition, 10 percent of the surveyed Criminal Division Chiefs said they believed that FBI agents in their District do not have the same understanding as the U. Attorney's Office of the Guidelines' requirement to notify the U. Attorney of any unauthorized illegal activity by CIs.
These results were one of the several areas in which the Criminal Division Chiefs indicated that the required interaction between FBI and DOJ personnel on informant matters is working well. However, some of our findings and the results of our file reviews are in conflict with the Criminal Division Chiefs' positive assessment. As discussed above, in the course of our file reviews we identified Guidelines violations with respect to the required notifications regarding otherwise illegal activity, unauthorized illegal activity, and events surrounding the deactivation of confidential informants.
We also identified two cases in which the FBI failed to obtain proper authorization from the U. Moreover, the Criminal Division Chiefs indicated that they believe additional training for FBI Special Agents and supervisors and other measures are needed to promote adherence to the Confidential Informant Guidelines.
The following table describes the type of additional training they think is needed. Human sources are critical to the success of the FBI's criminal investigative mission and of other law enforcement and intelligence efforts aligned with that mission, including the efforts to prevent terrorism and address other emerging national security threats. Our review focused on the FBI's implementation of Attorney General Guidelines for one category of human sources, confidential informants.
The authorities and activities of other human sources, including assets and cooperating witnesses, are governed by different Attorney General Guidelines. Nor did our review examine how the FBI coordinates all of its human sources who, since November 5, , have operated under the FBI's unified Directorate of Intelligence.
Some senior FBI officials and many field personnel we interviewed believe the revisions were an overreaction and that the resulting Guidelines have generated widespread resentment among field personnel. Nonetheless, there is widespread recognition by FBI personnel we interviewed that criminal informants are vital to the success of the FBI's criminal investigative mission, and that the challenge for the government is to appropriately weigh the informant's value against the risk that the informant will commit unauthorized crimes or otherwise prejudice the government, and to monitor and supervise the relationship closely.
FBI personnel ranging from new agents to the Director told us that agents find the paperwork associated with opening and operating informants to be excessively burdensome and time-consuming. In addition, personnel in HIU stated that the current version of the Confidential Informant Guidelines is phrased in dense "legalese" that is hard for case agents to absorb, remember, and follow.
Although we were unable to quantify the precise impact of these issues, some of the field and Headquarters personnel we interviewed told us that some FBI agents are now reluctant to open informants because of these and other administrative and operational burdens. Our survey of Confidential Informant Coordinators revealed that the burden on case agents to complete the paperwork associated with the Criminal Informant Program is a major concern.
Approximately 70 percent of the Coordinators reported that case agents fail to devote adequate time to completing their paperwork or resist doing so. In addition, as the following diagram illustrates, the paperwork burdens of operating informants is one of the most frequently raised issues in their field offices.
The view that the paperwork requirements associated with handling informants excessively burden field agents was also cited in our interviews of FBI Headquarters personnel from the Criminal Investigative Division, Counterterrorism Division, Office of Intelligence, and Inspections Division.
FBI Director Mueller told us that he frequently hears agents complain about the "burdensome" procedures for opening and operating informants. In contrast, 10 of the 12 SACs in the field offices we visited said they believe the CI Guidelines are workable as written. They keep agents on track. Because of the Bureau's past fiascos, we need controls.
Sometimes agents get sidetracked. He stated that his informant program personnel complete the necessary documentation for the agents if asked and were prepared to answer any questions regarding the operation of informants. He characterized his agents as being "spoon-fed" on informant compliance issues. Notwithstanding the support available to agents in this field office, our review found that percent of the informant files we reviewed in that office contained one or more Guidelines violations.
In the course of reviewing informant files in 12 field offices, we were mindful of these concerns and sought to examine whether the reason for the complaints is the Guidelines themselves; other reasons that make compliance overly complex, time-consuming, and difficult; or a combination of these factors.
After evaluating the requirements of the Confidential Informant Guidelines and how they work in the field, we share the view of the majority of SACs we interviewed that the Guidelines themselves are not overly burdensome. Instead, we believe that the significant reasons for non-compliance are: inadequate administrative support for the Criminal Informant Program, including the failure to provide standardized forms, a field guide, and Intranet tools; failure by executive managers to hold first-line supervisors accountable for compliance deficiencies and to exercise effective oversight of agents operating confidential informants; inadequate training at every level new agents, probationary agents, experienced agents, Confidential Informant Coordinators, Supervisory Special Agents, senior field managers, and key Headquarters personnel , including periodic training on the Guidelines themselves and joint training with the U.
Attorneys' Offices on appropriate methods to operate confidential informants; inadequate support of Confidential Informant Coordinators and assignment of this responsibility as a collateral duty; failure to take compliance performance into account in personnel and promotion decisions and policies; and lingering differences between the FBI and DOJ over informant issues.
Below we address each of these issues. Inadequate Administrative Support. As has been well documented, the FBI has struggled to upgrade its antiquated computer systems for many years. Our interviews, field office site visits, and analysis of documents produced by the FBI reveal that three years after the May revised Investigative Guidelines were issued, FBI agents do not have FBI-wide, standardized forms to support the administrative steps required to operate confidential informants.
The FBI is capable of producing such forms; indeed, there is widespread use of automated forms throughout the FBI to support a host of administrative and operational programs. Some of these forms are out of date and some are under-inclusive or over-inclusive in what they require.
Because of the different practices used by the FBI's field divisions to administer the Criminal Informant Program, transferred agents must make needless, time-consuming adjustments to the unique, sometimes outdated, requirements of their new offices.
The following table illustrates the wide discrepancies in data pertaining to Confidential Informant Guidelines' requirements that is collected in various forms maintained in 7 of the 12 field offices we visited. Complicating the agent's task even further is the fact that there is no one place on the FBI's Intranet where an agent who wants to initiate the registration of an informant can look for guidance regarding the approval and operation of CIs.
Consequently, it is easy to understand the frustration expressed by field office personnel in explaining compliance deficiencies when it is so difficult for agents to find the various requirements, and standardized administrative tools are not available. Another impediment to compliance with the Guidelines is the absence of a field manual comparable to the one provided for undercover operations by the Undercover and Sensitive Operations Unit USOU , which we discuss in Chapter Four.
Several field offices, including Newark and Knoxville, have generated their own handbooks or manuals to fill this void. However, the best practices and time-saving devices that have evolved over the years in the field have not led to the development of a uniform field guide for all agents. Some analysts have instituted tickler systems and other mechanisms to promote timely compliance.
While this support is helpful, we believe the FBI needs an agency-wide, standardized system which can be accessed at Headquarters and in the field. Because its internal human source policies, practices, and manuals must account for and comply with the Attorney General's Guidelines, the FBI enlisted DOJ to assist in the re-engineering effort. The working group's goals are to develop new guidelines, policies, and processes for the utilization of confidential human sources that are designed to reduce burdensome paperwork, standardize source administration procedures, clarify compliance requirements, and improve Guidelines compliance.
Headquarters officials, field managers, Informant Coordinators, and Division Counsel we interviewed identified the first-level supervisor as the linchpin to ensuring FBI agents are held accountable for compliance with the Confidential Informant Guidelines.
Our review indicated, however, that some field supervisors have failed to identify risks associated with operating informants. For example, Supervisory Special Agents SSAs are required every 90 days to conduct reviews of all confidential informant files, or, in the case of privileged informants, every 60 days.
During this review, they are to note a variety of information, including Guidelines compliance deficiencies pertaining to payments, criminal history checks, authority to engage in otherwise illegal activity, and continuing suitability.
We saw many instances where file reviews were not performed timely and deficiencies were not resolved promptly.
See also Chapter 7, Case Study 7. Beyond the general issue of timely compliance with the Guidelines, we believe, based on our field and Headquarters interviews and survey responses, that some field supervisors have historically failed to be as fully engaged as needed to identify risks associated with operating informants. Our findings with respect to supervisory approval and monitoring of "otherwise illegal activity" and notifications regarding the occurrence of unauthorized illegal activity are particularly notable in this regard.
With respect to otherwise illegal activity, as illustrated in Table 3. In each of these instances, field supervisors failed to exercise their responsibility to ensure that, as supervisors, they followed these Guidelines' provisions. On November 8, , the Assistant Director of CID sent a candid self-assessment to all FBI field offices, the apparent purpose of which was to communicate the Division's concerns about these compliance deficiencies and to clarify related field guidance. Among its conclusions, the CID stated that one of the factors contributing to the present state of the Criminal Informant Program was "a failure on the part of field office managers to effectively exercise oversight" of the program.
In particular, with respect to the critical role executive managers and supervisors play in approving otherwise illegal activity, CID made the following observation: [Executive managers] and Supervisors, when reviewing reauthorizations, must ensure OIA authority requested is commensurate with the completed activity, for example, the previous OIA was to purchase drugs; however, during the authorization period, the source also purchased weapons.
Subsequent justification, authority and concurrence must extend to weapons. There were instances noted wherein requests for OIA authorization did not include sufficient justification and failed to note, with specificity , the activity ies authorized for the source.
There were instances in which OIA admonishments were backdated, completed by an agent other than the agent administering the admonishments, not administered within the authorized time frame, or simply not administered. Cause: The assessment identified the following as factors contributing to the rate of non-compliance in this area: Lack of familiarity with guidelines' requirement; a deficiency on the part of Executive Managers to exercise adherence to and oversight of guidelines requirements; and a failure to recognize the implications of providing a "blank check" endorsement for a source to participate in criminal activity.
Emphasis in original. Among CID's general conclusions were that "despite the identification of non-compliance issues, there was a high rate of recurrence or failure to remedy those identified issues" and that "outside of mitigation, there was no accountability for identified non-compliance in the program. We found two instances in which required notifications did not go to the U.
Attorney's Office at all and three occasions when the required notification either did not go from the SAC or to the U. Attorney, or both. Attorney was required. This was due primarily to the lack of information concerning whether a state or local prosecuting office had filed charges against the informant.
We believe it is critically important for FBI supervisors and Headquarters officials to be aware when CIs engage in unauthorized illegal activity and to exercise oversight to ensure that agents do not inappropriately insert themselves into state or local proceedings against the informant or otherwise act inappropriately when FBI informants are at risk.
In addition, it is important that the FBI not continue its relationship with informants who, on balance, present greater risks than benefits. Because the Guidelines provide that the U. Attorneys' Offices and the DOJ's Criminal Division are to bring their judgments to bear on whether the FBI should continue to utilize CIs who have committed unauthorized illegal activity, it is important that FBI supervisors ensure that prosecutors are notified as required.
The FBI's failure to track whether state or local charges have been filed against CIs who commit unauthorized crimes is a significant gap in its oversight of confidential informants. We believe that the failure of some executive managers to ensure that first-line supervisors and ASACs are held accountable for Guidelines violations by those under their supervision should be remedied promptly.
Inadequate Training At Every Level. We believe that another reason for the FBI's high non-compliance rate with the Confidential Informant Guidelines is the absence of regular training of field agents and supervisors on the risks of handling confidential informants, failure to identify best practices to use in managing informants, and the absence of joint training with the U.
We outline in Chapter Eight our concerns about the FBI's failure to develop and implement a comprehensive training program to acquaint field agents, their supervisors, and Headquarters personnel with the requirements of the four Investigative Guidelines. With respect to the Confidential Informant Guidelines in particular, the FBI was provided specific direction concerning training. Section I. The agency specific guidelines must ensure, at a minimum, that the JLEA's agents receive sufficient initial and in service training in the use of CIs consistent with these Guidelines, and that compliance with these Guidelines is considered in the annual performance appraisal of its agents.
As part of such compliance the JLEA shall designate a senior official to oversee all aspects of its CI program, including the training of agents; registration, review and terminiation of CIs; and notificications to outside entities.
In November , FBI Headquarters initiated a mandatory "Back to Basics" lesson plan for all assigned Special Agents, including managers, on the operation of human sources. These sessions included 80 hours of training for approximately 15 Confidential Informant Coordinators and other field personnel who were assigned to Headquarters about the administrative oversight of informants and other human sources. The FBI provided blocks of instruction on source administration in nine regional training sessions for a total of approximately Supervisory Special Agents, Special Agents, and task force officers between May and October , and five Informant Development in-service training sessions between January and February for a total of approximately experienced Special Agents.
Prior to the June training session, the last in-service advanced training provided on informant development was in September It also provided a block of training on the CI Guidelines at a specialized conference on health care fraud and at a white collar crime conference for ASACs. At the field level, Informant Coordinators told us that they have conducted formal and informal training sessions, posted information about the revised Guidelines on field office computer systems, and distributed answers to frequently asked questions.
Yet, despite these training efforts, our review found that more training is needed to improve compliance with the Guidelines. For example, Confidential Informant Coordinators do not have a regular training regimen. They do not meet on an annual basis, and there are no regional or local training opportunities that focus on Guidelines issues.
Seventy-two percent of the Informant Coordinators indicated that Division Counsel should provide additional training on the CI Guidelines to Special Agents and supervisors in their field offices. Several Informant Coordinators suggested that training go beyond simple instruction on what the Guidelines require. A warrantless search of an automobile may proceed so long as officers have probable cause to believe contraband is within the particular vehicle.
More Posts. Previous Post Next Post. Related Posts. November 5, Andrew Birozy. Read More. October 27, Rex Scism. Court of Appeals for the Sixth Circuit held. Readler wrote for the court. The confidential informant, Jerry Heard, had informed the local police department that Crawford was dealing cocaine. Heard went on to provide more information about Crawford, including what car he drove and when and where he would sell drugs.
The case is United States v.
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