Monday, August 31, 2015
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.