How Do Federal Defense Lawyers Challenge Evidence from Informants?

Informants play a crucial role in many federal criminal investigations and prosecutions. They provide inside information and testimony that can help build strong cases against defendants. However, evidence from informants also raises many challenges for federal defense lawyers seeking to protect their clients’ rights. This article will examine common strategies federal defense attorneys use to challenge informant evidence and testimony.

Understanding Informants in Federal Cases

Informants go by many names – confidential informants (CIs), cooperating witnesses, snitches, rats. They are criminals who agree to provide information to law enforcement in exchange for leniency in their own cases. This leniency often comes in the form of reduced charges or sentences.

The Department of Justice and FBI have guidelines regulating the use of informants. However, informants are still considered a high-risk, high-reward tactic. They provide inside information unavailable to police through normal investigative work. But they also have strong incentives to provide false or embellished information to better their own situations.

Federal cases involving drugs, organized crime, terrorism, and corruption frequently rely on informants. But this evidence poses many challenges for defense lawyers seeking to protect their clients’ constitutional rights.

Discrediting Informants through Discovery

One of the main strategies federal defense attorneys use is demanding discovery about the informant and their background.

The Supreme Court has ruled prosecutors must disclose any evidence that could impeach a government witness, including informants. This includes:

• Criminal history: Any crimes they have committed or leniency received in prior cases. This reveals motivation to lie and patterns of deception.
• Compensation: Any payments, promises of leniency, or other benefits offered in exchange for cooperation. This reveals incentives to fabricate information.
• Personnel files: Any misconduct or dishonesty noted in the informant’s employment records if they worked as a law enforcement agent.
• Mental health issues: Any psychological conditions that could impact perception or memory.
• Substance abuse: Any history of drug or alcohol abuse that could cloud their judgment.
• Pre-trial statements: Any inconsistent statements from prior interviews or testimony in related cases.
• Handler history: Any evidence their handling agents have engaged in misconduct with other informants.

Federal defense lawyers thoroughly review all such discovery and investigate informants’ backgrounds themselves to build an impeachment case.

Exposing Informants through Cross-Examination

In addition to impeaching informants through discovery, federal defense lawyers also aim to expose unreliability and ulterior motives during cross-examination at trial.

They may question informants about:

• Criminal incentives: The specific benefits they received in exchange for cooperating, including any promises of cash, dropped charges, or reduced sentences.
• Lies and inconsistencies: Any provable lies they have told in the past, any inconsistent statements in the current case, and any testimony that contradicts the evidence.
• Motive to fabricate: Personal reasons the informant would want to falsely implicate the defendant, such as revenge or protecting someone else.
• Police pressure: Whether police pressured the informant to implicate the defendant or “remember” details a certain way.
• Mental competence: Any mental health conditions or addictions that could impact perception, memory, judgment, and reliability.
• Contamination: Whether informants gleaned case details from media reports or officers that improperly influenced their testimony.

Skilled cross-examination can demonstrate informants are unreliable witnesses who will say anything to help themselves. But this requires extensive preparation by the defense attorney to uncover impeaching evidence.

Seeking Exclusion of Informant Testimony

In some cases, federal defense attorneys may seek to exclude informant testimony altogether by filing a motion with the court. Possible grounds for exclusion include:

Unreliability

If the defense can show the informant’s testimony is completely unreliable – for example, due to mental illness, intoxication, or clear evidence of fabrication – they can argue it would violate the defendant’s due process rights to allow the jury to hear it.

Undue Prejudice

If the informant’s testimony would be highly prejudicial with little probative value – for example, baseless claims that unfairly bias the jury – the defense can seek exclusion arguing it would violate the right to a fair trial.

Privilege Violations

If informants obtained information by violating a privilege – for example, spying on attorney-client conversations – those statements may be excluded as confidential communications.

Miranda Violations

If informants interrogated targets without reading Miranda rights, their testimony about resulting statements may be excluded as unconstitutional coercion.

Entrapment

If informants pressured or induced targets into committing crimes they were not predisposed to, the defense can argue they were entrapped and any resulting evidence should be excluded.

While these motions are challenging, sometimes exclusion provides the only chance for a fair trial untainted by unreliable or illegal informant evidence.

Attacking Informant Credibility in Opening and Closing Arguments

In both opening statements and closing arguments, federal defense lawyers emphasize informant credibility problems revealed through discovery and cross-examination.

They may rehash lies on the stand, ulterior motives, police pressure, mental issues, criminal records, and other impeachment evidence. They argue informants cannot be trusted or believed. This framing can leave jurors highly skeptical of informant testimony.

Requesting Cautionary Jury Instructions

Federal defense attorneys often request jury instructions warning jurors to view informant testimony with caution and great care. Common instructions include:

• Informants may have incentives to lie based on promises of leniency. Their testimony should be viewed with skepticism and weighed with great care.
• The extent to which informant testimony may have been influenced by police pressure or self-interest to lie must be considered.
• Testimony from informants admitting their own crimes should be considered with greater caution than ordinary witnesses.
• Informants with mental illnesses or addictions may have impaired abilities to perceive, remember, and recount events. Their testimony should be considered with great care.

These instructions remind jurors of credibility concerns and help neutralize the impact of informant testimony.

Leveraging Post-Conviction Remedies

If all else fails and the defendant is convicted based on informant evidence, federal defense lawyers can still leverage post-conviction remedies to challenge the conviction.

Possible tactics include:

• Appeals: Arguing the conviction should be overturned because informant evidence was unreliable, improperly admitted, or violated due process.
• Habeas corpus petitions: Claiming newly discovered impeachment evidence proves informant testimony was false and conviction should be vacated.
• Actual innocence claims: Asserting there is clear evidence the defendant was wrongfully convicted based on fabricated informant testimony.

While challenging convictions post-trial is difficult, it remains an option if prosecutors fail to disclose key impeachment evidence that is later uncovered. Vigorous defense and scrutiny of informants at all stages is thus critical.

Conclusion

Informants are a complex facet of federal criminal cases. Their evidence can be crucial in obtaining convictions, but also raises significant reliability concerns. Through demanding discovery, rigorous cross-examination, exclusion motions, framing arguments, cautionary instructions, and post-conviction challenges, federal defense lawyers can mitigate the risks informants pose to fair trials and just outcomes for their clients. But defending against problematic informant testimony requires extensive preparation, investigation, and dedication from the defense attorney.