EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, August 31, 2015

Texas's In Camera Approach to Releasing CrimeStoppers Information to Defendants

In a comment to my post last Thursday, I noted how the State of Maryland could respond to requests about CrimeStoppers tips. Under this procedure, CrimeStoppers tip information would be given to the judge to review in camera. If the judge thought that this information contained possible Brady material, he would turn the information over to the defense. If the judge thought that this information did not contain possible Brady material, it would be returned to the State. Interestingly enough, this is the exact procedure followed in Texas.

In 1987, the Texas Legislature enacted a CrimeStoppers privilege, which prevented disclosure of CrimeStoppers tip/reward information. Thereafter, in Thomas v. State, 837 S.W.2d 106 (Tex.App. 1982), Kenneth Thomas was charged with capital murder based upon the murders of Fred and Mildred Finch. Prior to trial, he "applied to the District Court for a subpoena duces tecum to compel the production from Dallas Crime Stoppers of any information pertaining to the deaths of Mr. and Mrs. Finch, including the names of informants...."

Citing the privilege, the court denied Thomas access to this information, and he was ultimately convicted. Thomas thereafter appealed, claiming that the privilege denied him his constitutional right to material exculpatory evidence under Brady. The Court of Appeals of Texas agreed with Thomas, finding

that the confidentiality provisions of the crime stoppers statute, as interpreted by the trial court and as applied to appellant, reach too far. They operate to totally bar a defendant access to information that may be material, whether in the possession of the State or any other person. Denial of access to information which would have a reasonable probability of affecting the outcome of a defendant's trial abridges a defendant's due process rights and undermines the court's duty to vindicate Sixth Amendment rights. There is no interest that could be asserted by the Legislature that would be compelling enough to justify such a result.

That said, the court concluded that

to allow a defendant unlimited access to the information would unnecessarily compromise the State's interest in fostering law enforcement and its efforts to do so by protecting the identity of crime stoppers informants. We believe that both the State's interest and the defendant's interest can be served by providing that crime stoppers information should be inspected by the trial court in camera. Neither the attorneys for the State or defendant should be present. It will be the responsibility of the court to determine if the produced information contains Brady evidence. The court must, in its sound discretion, take steps to ensure that, to the extent possible, the information remains confidential. If information is deemed material at the time it is inspected or at any future stage of the trial, it must be released to the defendant pursuant to well-settled precedent. At the conclusion of trial, the information shall be sealed and made part of the record.

Now, keep in mind that Maryland has no analogous CrimeStoppers privilege, meaning that there is no legal basis to deny defendants in the Old Line State access to tip information. That said, even if a Maryland court wanted to act with an abundance of caution, it could still approve the in camera review mandated under Texas law.

-CM

https://lawprofessors.typepad.com/evidenceprof/2015/08/in-acommentto-my-post-last-thursday-i-noted-how-the-state-of-maryland-could-respond-to-requests-about-crimestoppers-tips-un.html

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Comments

If the tipster in Adnan's case was anonymous until the payout, could it be that the reason the payout happened so late was because the tipster simply failed to check the status of the case until October? I started listening again to Episode 10, and you mentioned that the tipster would call in and get an ID code that they could then use to call back and obtain updates on the case and/or find out whether they were entitled to the reward. If they chose not to give their name and phone number to Crime Stoppers, then Crime Stoppers would have no way to contact them if and when there was an arrest and indictment. So perhaps the tipster did not leave any contact information and for whatever reason waited until September or October to call back and found out at that time that they were entitled to a reward. Is that a possible explanation for the delay?

Posted by: Ann | Aug 31, 2015 8:42:42 AM

Ann: It's a possibility, but I'd have to wonder about why a person would wait so long to follow up. For almost anyone, $3,075 is a significant amount of money. I imagine even someone who isn't especially diligent would have called CrimeStoppers at some point during the summer.

Posted by: Colin Miller | Aug 31, 2015 9:10:14 AM

I would agree on that point. I think what a lot of people, including myself, seem to be struggling with is the idea that law enforcement can get ahold of a tipster's identity despite Crime Stoppers' promise of anonymity and assertions that it does not collect identifying information from the tipster. Obviously, given the cases and other incidents you have cited, there are times where law enforcement does know the tipster's identity, possibly even before payout. I think the answer to this may be simple - during the investigation, the cops ask witnesses whether they made an anonymous phone call (this can be seen in many of the police interviews in Adnan's case). If the tipster answers yes, then the cops have the information at that time. If not, I would imagine that once the prosecutors decide who they will have as testifying witnesses, if they are following all the rules, they would also ask their testifying witnesses whether they ever provided any tips to the police or to a Crime Stoppers organization. At that point, since the person is already planning to testify against the defendant, they would not need the protection of anonymity, so presumably would tell the prosecutors the truth. At that point, the prosecutors would then be obligated to disclose it as Brady material. If all of these procedures were followed, then someone who did not testify and did not otherwise disclose identifying information themselves could remain anonymous if they chose to, even to law enforcement.

Posted by: Ann | Aug 31, 2015 9:21:33 AM

Why, in your legal analysis of this issue, have you not directly considered the "informers privilege" under Roviaro v. United States, 353 U.S. 53 (1957) (and the line of cases under Maryland law applying a similar approach) when it comes to disclosure of the identity and content of confidential informants and tipsters?

Posted by: Nine9fifty50 | Aug 31, 2015 2:18:40 PM

Is there any scenario in which Jay was implicated in the tip and used looking to buy Coach Brown's motorcycle as an alibi? Maybe they didn't follow up with it once the prosecutor became involved in the interviews bc they already had Jay confessing to being involved and didn't want to complicate matters byhaving a proscecutor finding out that Jay had an alibi putting him anywhere other than burying a body with AS? I just cannot wrap my head around someone sending pinning a murder on an acquaintance and sending him to jail, for life, fit a $3K reward. The term "Psychopath" was thrown around a bunch re: Adnan during Serial but if anything fits the criteria for psychopathic behavior it's trading the life of a guy you hang out with for a used, $3000 motorcycle. And tangentially related, here's an example from local news of someone coming in police to offer a tip in exchange for reward despite being the likely perpetrator (innocent until proven guilty, etc, but interesting) http://www.westernmassnews.com/story/29917821/suspect-in-lowell-sexual-assault-back-in-court

Posted by: Allison J | Aug 31, 2015 5:40:54 PM

Ann: Law enforcement is there for the pay-out. Unless the tipster is someone with no tangible relation to the case, LE will know identity at this point.

Allison J: It’s an interesting theory, but Jay never mentions it in any of his interviews or testimony. Also, Coach Brown doesn’t remember being asked about anything related to such an alibi.

Nine9Fifty50: Rovario has never been applied to a CrimeStoppers tipster, and it wouldn’t apply because a tipster isn’t a government employee.

Posted by: Colin | Aug 31, 2015 5:41:32 PM

I'm not sure what you mean; the "informer's privilege" describes the prosecutor's privilege to withhold the identity of confidential informants and tipsters.

In Howard v. State, 503 A.2d 739, 745 (Md. App. 1986), the Court stated:
"[w]here the informant is a “tipster”, and not a participant, accessory, or witness to the crime, disclosure of his identity is not required. Gulick v. State, 252 Md. at 356, 249 A.2d 702. On the other hand, where the informant participates in the crime or other activities associated with the crime, evidence of which is introduced into evidence or utilized by the trier of fact in deciding the case, it is reversible error to fail to disclose the informant's identity. Roviaro v. U.S., supra, Nutter v. State, 8 Md.App. at 651, 262 A.2d 80. Furthermore, where the defense makes the required showing as to the necessity and relevance of the informant's testimony to a fair defense, the trial court's denial of the motion without having required the State to respond to it is reversible error. Hardiman v. State, 50 Md.App. at 105, 436 A.2d 923; Jones v. State, 56 Md.App. at 110, 466 A.2d 895."

There is a lot of case law in this area applying Rovario to confidential informants, including to tipsters to Crime Stoppers-like hotlines, See e.g., U.S. v. Zamora, 784 F.2d 1025, 1030-31 (10th Cir. 1986) (Appellant claimed that the confidential informant from a Crimestoppers tip line "was a witness to the crime and that under Rovario, the informant must therefore be revealed. But Rovario and its progeny have held that if a confidential informant was only a “tipster,” and not an active participant in the criminal activity charged, disclosure of the informant's identity is not required. United States v. Halbert, 668 F.2d 489 (10th Cir.1982); United States v. Perez-Gomez, 638 F.2d 215, 218 (10th Cir.1981); Accord: United States v. Lewis, 671 F.2d 1025 (7th Cir.1982); United States v. Sherman, 576 F.2d 292 (10th Cir.1978). Appellant apparently contends that the informant here was more than a “tipster,” but there was no showing to identify how the informant was involved in the illegal activity.")

For a Maryland case, see Faulkner v. State, 534 A.2d 1380, 1383-1385 (Spec.App.Md. 1988) (Identity of anonymous and confidential tipsters to Crime Solvers hotline need not be disclosed by prosecutors).

Posted by: Nine9fifty50 | Aug 31, 2015 7:42:54 PM

Nine9fifty50 : I just read through your first case, Howard, and it involved a tipster who was not paid or promised anything. That is not at all comparable to a CrimeStoppers tipster. Given the inapplicability of Howard, I'm not going to read the rest of the cases. If you have a case that is legitimately on point, post a comment on it, and I will address it.

Posted by: Colin | Sep 1, 2015 3:02:58 AM

I was wondering if the tip was from someone other than Jay and the tip was something like:
"Hey this guy Jay Wilds was involved in dumping the body (but not the murder) you should go check him out". But the tip does not mention Adnan.

Then the reward was paid after Jay officially pled guilty (he was never arrested or indicted right? So the parameters of the reward are only met after he pleads guilty. If that were the case is that Brady material?

Posted by: Eric | Sep 1, 2015 5:12:30 AM

Colin,

Somehow I skipped your previous post! You can ignore my last question your last post answered that for me... Thanks so much for the great insight you provide.

Eric

Posted by: Eric | Sep 1, 2015 5:20:21 AM

Ann: I'm guessing there's nothing stopping the police from tracing phone calls once they have the time and date of the tip. Just because CrimeStoppers do all they can to maintain anonymity, doesn't mean police won’t do all they can to get round that anonymity.

Colin: You mentioned that the state is ignoring MPIA requests for tip information (on addendum 10). Have reasons been given for refusals so far, or have requests simply been ignored? I’d be interested to hear the reasons if given. I found this info on time limits for the state to respond to requests:

B. Time for Response
Under GP § 4-203(b), if a record is found to be responsive to a request and is recognized to be open to inspection, it must be produced “immediately” after receipt of the written request. An additional reasonable period “not to exceed 30 days” is available only where the additional period of time is required to retrieve the records and assess their status under the PIA. A custodian should not wait the full 30 days to allow or deny access to a record if that amount of time is not needed to respond. If access is to be granted, the record should be produced for inspection and copying promptly after the written request is evaluated. Similarly, when access to a record is denied, the custodian is to “immediately” notify the applicant. GP § 4-203(c)(i). Within ten working days after the denial, the custodian must provide the applicant with a written statement of the reasons for the denial in accordance with GP § 4203(c)(2). This 10-day period is in addition to the maximum 30-day or (with an agreed extension) 60-day periods for granting or denying a request. Stromberg Metal Works , Inc. v. University of Maryland , 382 Md. 151, 158-59 (2004). However, in practice, the denial and explanation generally are provided as part of a single response.
https://www.oag.state.md.us/Opengov/Chapter4.pdf

For civil and criminal penalties: https://www.oag.state.md.us/Opengov/Chapter8.pdf

Are any of these avenues being investigated?
Thanks.

P.S. Any comments on the Neighbour Boy interview?

Posted by: Cupcake | Sep 1, 2015 7:10:12 AM

The cases do not turn on whether the tipster called the line and was paid versus those that were not. Regardless, I highlighted Faulkner v. State, 534 A.2d 1380 (Spec.App.Md. 1988) for you above, which in fact involves tipsters who received rewards. My overall point is that this issue has been addressed by the courts and should be analyzed within that framework.

"The Montgomery County Crime Solvers program is a cooperative venture of the Montgomery County Police Department and a group of private citizens. The program requests that the public provide it with information concerning crimes. Anonymous and confidential telephone calls are received from informants. The informants report facts related to crimes, including the alleged identities and whereabouts of the perpetrators. Rewards are offered to informants when they provide information which leads to an arrest or an indictment. Rewards were made in this case."

"The State contends that confidentiality and anonymity are essential to the successful operation of the Crime Solvers program since informants give information under the representation that their identities will remain anonymous. A traditional informant, like a Crime Solvers' informant, also provides the police with confidential and anonymous information about crimes. The traditional informant, however, usually is not responding to the Crimes Solvers' request for information but, instead, is voluntarily informing the police about facts he or she knows about a crime. Confidentiality and anonymity are no less important to assure the continued assistance of traditional informants than that of Crime Solvers' informants. If the State is unable to preserve the confidentiality and anonymity of informants, many individuals who possess information relating to crimes will be unwilling to provide the police with the information in the future. Moreover, if anonymity is breached, informants' lives could be endangered by revenge-seeking criminals. In sum, without anonymity and confidentiality, the public would not be as willing to give police information about crimes, and additionally, the lives of informants could be endangered. The State was understandably opposed to disclosure of the informants' identities."

Posted by: Nine9fifty50 | Sep 1, 2015 7:34:11 AM

If the state does release the name of the tipster to Justin Brown, are the chances high that there will be a protective order entered in the case and that all briefing about the tipster will be under seal? For a case being tried in a media, I think that would be a difficult thing to keep secret.

Separately, do you still think it's a Brady violation if it's someone like Bilal or another member of the mosque who simply told police that Adnan might have done it, but who never testified? I could see the prosecutor making a Brady determination that if the tipster wasn't testifying, no need to disclose him.

Posted by: RR | Sep 1, 2015 8:08:28 AM

Regarding the podcast yesterday, why do you assume that the cops rewrote the Coach Sye bit after the interview had happened. It might be easily be that Jay says Adnan talked to Coach Sye in order to create an alibi, given that Coach Sye might be questioned by the police. Clearly that is a more plausible explanation.

Posted by: S | Sep 1, 2015 9:13:45 AM

Eric: No problem.

Cupcake: The requests have just been ignored for now. We’ll see whether that changes. I still need to listen to the NB interview.

Nine9fifty50: Thanks for the citation. That’s actually a really interesting case and helpful to Adnan’s claims. I will do a post about it.

RR: I would guess that there would be a protective order attached. It’s tough to say whether a particular tip/tipster would be a Brady violation. Keep in mind that the tipster got the full $3,075 reward, which implies that they gave very helpful information. Without knowing the nature of that information, it’s impossible to say.

S: I don’t know what to make out of the notation. It states, “S – Later made a comment to W I’m glad I talked w/coach he questioned about by police.” Clearly, Jay is saying that Sye had already been questioned by police, but Sye himself makes clear that he wasn’t questioned until March 23rd.

Posted by: Colin | Sep 1, 2015 10:37:57 AM

You mention that the tipster got the full reward, indicating that they gave very helpful information. At the same time, though, if the tip was indeed the same or similar to the tip that supposedly came in on Feb. 12, it offered very little information other than simply naming Adnan. What do you make of this inconsistency?

Posted by: Ann | Sep 1, 2015 11:01:38 AM

Ann: It seems likely that the 2/1 tipster gave additional information after making the initial call.

Posted by: Colin | Sep 1, 2015 11:40:00 AM

What is the evidence that the full reward was payed out to the tipster? The reward posters say up to $2000 (from CrimeStoppers) - and you've said the reward consisted of just $575 from CS plus an additional $2500 from the separate Korean fund - so why not the full $2000 from CS if it's true that it's the full reward (therefore totalling $4500)? It makes more sense that the tip was only worthy of part of the full $2000 - so what's the evidence that this was 'full'?

Posted by: Cupcake | Sep 1, 2015 2:13:38 PM

Cupcake: The CrimeStoppers source said the full $3,075 reward was paid out to the tipster.

Posted by: Colin | Sep 1, 2015 2:30:15 PM

I would caution not to just take one case though - As I said, there are many cases addressing whether prosecutors have the duty to disclose the identity or content of information received from informants under Rovario and the equivalent line of cases under Maryland law (and from what I see they do not turn on whether the informant was paid a reward). It seems the cases place the burden on the defense to raise the issue and show (beyond mere speculation) that the privilege should give way, such as if the defense can show that the tipster/informant was involved in the crime.

Posted by: Nine9fifty50 | Sep 1, 2015 2:40:43 PM

Nine9fifty50, maybe you need your own blog and podcast. Then the rest of us who don't have a burning need to take Colin on at every turn can have an actual discussion based on what he posts.

Posted by: Beth | Sep 5, 2015 7:23:20 PM

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