How Do Federal Defense Lawyers Handle Cases Involving Informants?

Informants play a major role in many federal criminal cases. They provide inside information and testimony that helps federal agents and prosecutors investigate and build cases against criminal networks. But dealing with informants also raises ethical issues for defense lawyers who must protect their clients’ rights. This article explores how federal defense attorneys approach cases when informants are involved.

The Prevalence of Informants in Federal Cases

Informants, also called confidential informants (CIs), are commonly used by federal law enforcement agencies like the FBI, DEA, ATF, and Homeland Security[1][2]. They give tips, wear wires, make controlled buys, testify to grand juries, and provide other investigative help in exchange for money, dropped charges, or other benefits[3].

Cooperating witnesses are similar, but they are criminally charged suspects who agree to plead guilty and testify against others for reduced sentences or immunity. Both informants and cooperating witnesses provide critical inside information and testimony for federal prosecutors[4].

Experts estimate 15% of all federal criminal cases involve informant testimony, while up to 20% involve cooperating witnesses[5]. These figures likely understate the full extent informants assist investigations before charges are filed.

Why Informants Are Used in Federal Cases

There are several reasons why informants and cooperating witnesses are so widely used by federal investigators and prosecutors[3]:

• They provide tips and information impossible to obtain otherwise about organized crime, drug trafficking, corruption, and other hard-to-infiltrate criminal networks.
• They make controlled buys and wear wires to generate evidence against criminals who insulate themselves from handling drugs or money.
• They provide probable cause for search warrants, grand jury subpoenas, and electronic surveillance.
• They testify to grand juries to obtain indictments against high-level criminals.
• Their testimony at trial helps convict kingpins and high-ranking members of criminal groups.
• Their assistance dismantles entire mafia families, gangs, drug rings, and other criminal organizations.

In short, informants and cooperating witnesses give the inside scoop that allows agents and prosecutors to build strong cases against sophisticated criminal networks.

Ethical Concerns With Informants

Despite their usefulness, relying on informants raises ethical concerns, such as[4]:

• Informants may lie or fabricate information for money or leniency.
• Allowing informants to commit crimes to aid investigations is problematic.
• Bargains to drop serious charges undermine justice.
• Informants incentivized to provide information risk entrapping innocent people.
• Overreliance on informants can make investigations sloppy or biased.
• Disproportionate benefits for cooperators make sentencing arbitrary.
• Lack of regulation and oversight of confidential informants is troubling.

These issues have led some critics to call for restrictions on using informants or cooperating witnesses. But federal law enforcement defends their importance in fighting organized crime, terrorism, and trafficking.

Defense Strategies For Cases Involving Informants

When informants or cooperating witnesses are involved, federal defense strategy focuses heavily on challenging their credibility and reliability. Common tactics criminal defense lawyers use include[6]:

• File discovery motions to get all evidence related to informants and cooperators, including any benefits they received and their history working with the government.
• Investigate the informant’s background for prior criminal history, inconsistencies, bias, or evidence of dishonesty.
• Allege entrapment by showing the informant improperly induced the defendant to commit a crime.
• Suppress evidence obtained illegally by the informant, such as through an unlawful search.
• Challenge probable cause for warrants based on informant information by disputing their basis of knowledge or credibility.
• Discredit informant testimony on cross-examination by confronting them with lies, inconsistencies, or bias.
• Object to informant jury instructions that improperly vouch for their credibility.
• Seek evidentiary hearings to contest unreliable informants or procedural violations.
• Claim sentencing entrapment if the informant inflated the drug quantity.

Skilled federal defense lawyers use these and other techniques to vigorously contest cooperating witness testimony and mitigate the risks informants pose for defendants.

Handling Cooperating Witnesses and Plea Deals

Since cooperating witnesses testify pursuant to plea deals with the government, federal defense counsel must closely scrutinize the agreements[5]. Key strategies criminal lawyers use include:

• Evaluating if the cooperator complied with all terms of the plea agreement.
• Checking if the government fulfilled promised benefits like sentence reductions.
• Determining if the cooperator has breached the plea deal by lying, withholding information, or committing new crimes.
• Identifying grounds to argue the plea bargain should not be enforced if the cooperator violated it.
• Alleging prosecutorial misconduct if the government failed to disclose exculpatory evidence about informants.
• Advising the client carefully before entering any cooperation agreement with the government.
• Negotiating favorable immunity, charging, and sentencing terms for defendants who agree to cooperate.

When representing cooperating witnesses themselves, defense counsel must be extremely cautious to avoid conflicts of interest and advise their clients diligently regarding the benefits and risks of testifying.

Jailhouse Informants Raise Special Issues

A unique category of informants is jailhouse informants – cellmates who claim the defendant confessed to them in jail. While such testimony can provide critical evidence, jailhouse informants have proven notoriously unreliable.

Common problems federal defense lawyers expose regarding jailhouse informants include:

• Long criminal histories showing their lack of credibility.
• Incentives to fabricate confessions such as reduced sentences.
• Inability to provide details only the perpetrator would know.
• Admission they lied or fabricated confessions in other cases.
• Evidence their testimony was coordinated with prosecutors.
• Proof the defendant never made the alleged statements.

Given the serious reliability problems with jailhouse informant testimony, federal rules often require special evidentiary hearings to assess credibility before admission at trial. But many experts say more reforms are still needed governing prosecutors’ use of jailhouse informants.

Defense Counsel Must Be Exceedingly Cautious

In summary, informants and cooperating witnesses provide tremendous help to federal investigators and prosecutors. But relying on their information also raises many ethical pitfalls. As a result, cases involving informants require defense counsel to be extremely diligent to protect the rights of their clients.

By investigating informants’ backgrounds, vigorously contesting their credibility, scrutinizing cooperation agreements, and utilizing other defense strategies, skilled federal lawyers can mitigate the risks informants pose and win favorable case outcomes for their clients.

Sources

[1] FBI Guidelines for Informants

[2] ATF Confidential Informants

[3] Why Cops Use Informants

[4] Ethical Issues With Informants

[5] Cooperating Witnesses in Federal Cases

[6] Defense Strategies For Informant Cases

Jailhouse Informant Law Reform