Monday, March 7, 2011
The Informant(s)!: Court Of Appeals Of Texas Finds No Exception To Confidential Informant Privilege In Drug Appeal
Texas Rule of Evidence 508(a) provides that
The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.
Texas Rule of Evidence 508(c)(2), however, provides an exception to this confidential informant privilege
If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of a material issue on the merits in a civil case to which the public entity is a party, or on guilt or innocence in a criminal case, and the public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the court may direct that testimony be taken if it finds that the matter cannot be resolved satisfactorily upon affidavit. If the court finds that there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose the informer's identity, the court in a civil case may make any order that justice requires, and in a criminal case shall, on motion of the defendant, and may, on the court's own motion, dismiss the charges as to which the testimony would relate. Evidence submitted to the court shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity. All counsel and parties shall be permitted to be present at every stage of proceedings under this subdivision except a showing in camera, at which no counsel or party shall be permitted to be present.
As the text of this rule implies, and as the recent opinion of the Court of Appeals of Texas, Waco, in Griffin v. State, 2011 WL 754349 (Tex.App.-Waco 2011), makes clear, to be entitled to an informant's identity under this exception, the defendant bears the threshold burden of making a plausible showing, based on more than mere conjecture and speculation, that the informant could give testimony necessary to a fair determination of guilt.
In Griffin, Henry Griffin was convicted by a jury for possession of one or more but less than four grams of a controlled substance in a drug-free zone. The evidence presented at trial established the following:
On September 11, 2008, Detectives Fletcher, Padgett, and Bolin of the Denton Police Department supervised three controlled buys at 625 Park Lane, Denton using two CIs. The detectives executed a search warrant for the home the next day. Both [Griffin] and his son, Javier Johnson, were present. When the police searched [Griffin], they found six rocks of cocaine in his pocket.
After he was convicted, Griffin appealed, claiming, inter alia, that the trial court erred in denying his pretrial motion seeking the identity of the CI or CIs from which the officers got their information to do the buys. The Court of Appeals of Texas, Waco, disagreed, concluding that
To be entitled to an informant's identity under the second exception, the defendant bears the threshold burden of making a plausible showing, based on more than mere conjecture and speculation, that the informant "could give testimony necessary to a fair determination of guilt."...
Here, [Griffin] did not dispute at the hearing that officers found him with six rocks of cocaine in his pants pocket when they executed the search warrant. [Griffin] did not raise any potential defenses or affirmative defenses except that the informer may have had information about whether appellant was involved in the delivery of the substances. As the trial court pointed out, even if both CIs testified that [Griffin] was not involved in the delivery or even possession of the drugs on the day of the controlled buys, that did not necessarily mean that he did not possess with the intent to deliver on the 12th.