EvidenceProf Blog

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

Friday, August 28, 2015

Answering Two Questions About the Intersection of CrimeStoppers & Brady

Over the past week, I've been following up on Monday's episode of the Undisclosed Podcast and digging into the possible legal implications of the State's failure to disclose that a CrimeStoppers tipster received the full $3,075 reward for information supplied in connection with the death of Hae Min Lee. In today's post, I will delve even deeper into the weeds by answering a couple of questions.

What if the tip pointed to Jay?

A few people have written asking about the possibility that the CrimeStoppers tip was a tip about Jay and not a tip about Adnan. This would provide an alternate explanation for the November 1st payout despite the fact that Adnan was indicted in April. 

I will certainly admit that this is a possibility, and I will continue to claim that the non-disclosure of such information could very easily be a Brady violation. In my research on CrimeStoppers, I've come across several cases in which the State failed to disclose that CrimeStoppers tipsters pointed the finger at alternate suspects. In many of these cases, courts have deemed this information to be material exculpatory evidence, justifying a new trial under Brady.

For instance, in Gumm v. Mitchell, 775 F.3d 345 (6th Cir. 2014), Darryl Gumm was convicted of the kidnapping, attempted rape, and murder of a ten year-old victim. Obviously, this is pretty disturbing territory, but what's also disturbing in a different sense is that the State failed to disclose "Crimestopper reports, lead and tip sheets, and investigation notes and summaries memorializing information received and gathered by the police during their investigation." This evidence tended to point in the direction of two alternate suspects, prompting the Sixth Circuit to find a Brady violation. According to the court, "[p]rosecutors are not necessarily required to disclose every stray lead and anonymous tip, but they must disclose the existence of 'legitimate suspect[s].'"

Given that the primary alternate suspect put forward by Gutierrez at Adnan's trial was Jay, a CrimeStoppers tip pointing to Jay obviously could have been Brady material. Of course, the devil is in the details. If the tipster pointed to Jay and Adnan, obviously this would weaken Adnan's claim. Conversely, if the tip pointed to Jay and relayed one of Jay's stories that did not match his trial testimony (e.g., the murder was in the library parking lot; Jay got Adnan's call while at a pool hall), this would strengthen Adnan's claim. As the court noted in Gumm, tip information that could be used to impeach a key prosecution witness is often Brady material.

Gumm also partially answers the second question, which is...

Did the tip have to come from a testifying witness?

In yesterday's post, I cited to a Fiscal and Policy Note accompanying a bill that would have limited the admissibility and discoverability of CrimeStoppers information in Maryland. This bill recognized that law enforcement in Maryland has such information and thus attempted, inter alia, to "prohibit[] law enforcement from revealing the tipster’s identity. 

The bill failed, but the accompanying Note indicated that "information pertaining to confidential informants not intending to testify is not discoverable," prompting some to question whether tipster testimony is necessary for disclosure. As Gumm makes clear, the answer is "no." In Gumm, as in similar cases, the tipsters pointed to alternate suspects and thus were obviously not called at witnesses at trial by the prosecution (or the defense, which didn't know of their existence).

I'm assuming that the Note was written with the best of intentions, but it is simply an inaccurate statement of the law. This is further made clear by the Supreme Court case I cited on the podcast: Kyles v. Whitley. Again, this is the case in which "Beanie" received a CrimeStoppers reward and (excessive) reimbursement for a car he had purchased from the defendant, whom he implicated in a murder. In Whitley, "Beanie did not testify as a witness for either the defense or the prosecution" because he was a dangerous witness for both sides. Of course, the Supreme Court ultimately found a Brady violation in Whitley, proving that tipster testimony is not required to establish a Constitutional violation.

This is where things kind of get interesting. You might look at a tip and initially conclude that it is inculpatory as opposed to exculpatory. Take Whitley as an example: Beanie said in his tip that the defendant killed the victim, which seems inculpatory and beyond the scope of Brady. But it turned out to be exculpatory because the other reasonable inference is that Beanie himself committed the crime.

Let's now apply this to Adnan's case. Assume that the tipster was a fellow Woodlawn student who told CrimeStoppers on February 1st that Adnan strangled Hae. That sounds inculpatory, right? Your assumption might be that Adnan confessed to the tipster or that Adnan confessed to someone else, who relayed this information to the tipster. 

But you could also draw the opposite inference. If Adnan didn't tell the tipster or the tipster's source that he strangled Hae, then someone else somehow knew that Hae was strangled before her body was found. Could the tipster have been the murderer? Could the tipster's source of information have been the murderer? 

This is where I start to get uncomfortable with CrimeStoppers. Undoubtedly, in any number of cases, it leads reluctant witnesses to come forward and implicate legitimately guilty criminals based upon the shield of anonymity and the promise of a possible payout. On the other hand, in any number of cases, it leads those looking for a payout or looking to shift blame to someone else to come forward and finger an innocent person. 

Under the Sixth Amendment, the accused has the right "to be confronted with the witnesses against him." If a tipster implicates the defendant in a crime but does not testify against him at trial, does the defendant have the right to confront him? CrimeStoppers is seemingly based upon the proposition that this question should be answered in the negative. On the other hand, Brady requires the disclosure of material exculpatory information. So, here's the problem: How can a defendant make the claim that a CrimeStoppers tip is exculpatory without being confronted with the tip that was made and the tipster who made it?

-CM

https://lawprofessors.typepad.com/evidenceprof/2015/08/over-the-past-week-ive-been-following-up-onmondays-episodeof-the-undisclosed-podcast-and-digging-into-the-possible-legal-imp.html

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Comments

Thanks. For non attorneys like me, any ability of our government to withhold information being used to convict someone based on some kind of judgement of `inculpatory' versus `exculpatory', or, the precise definition of `witness' is highly suspect. Maybe legal `inside baseball' permits withholding, but boy, does withholding seem contrary to foundation of our Country.

Posted by: Halbarad1104 | Aug 28, 2015 9:05:12 AM

Isn’t the place to start how courts define exculpatory vs. inculpatory? What do they say? Your definition of exculpatory is so broad that it seems to include any tip of any kind, whether anonymous or not, as any tip could be coming from the murderer or be based on information provided to the tipster by the murderer. I have a really hard time believing any court construes these words that broadly.

Posted by: jorge | Aug 28, 2015 9:31:05 AM

Hello Professor,

Have you or anyone at Undisclosed spoken directly to the source at CrimeStoppers? If so how did you go about verifying they actually worked there or that the information they are providing about the 2/1/99 tip is accurate? I understand sometimes it's important to be more vague with the verification description to keep things anonymous, but this seems important for readers to evaluate whether these claims are believable. Thank you.

Posted by: Steve | Aug 28, 2015 9:34:20 AM

Halbarad1104: Yes, many non-lawyers are shocked by our discovery rules.

jorge: The question is whether the evidence creates the reasonable probability of a different outcome at trial. I’m not suggesting a broader definition; I’m simply suggesting that it is often likely impossible to know whether a CrimeStoppers tip contains material exculpatory evidence. Assume, for instance, that the tipster is someone who was known to have hated the victim or the defendant. Assume that the tipster had committed prior violent acts. Sure, a tip that implicates the defendant looks facially inculpatory, but who knows what you’ll find when you dig deeper.

Steve: I don’t want to got into the verification process, but I can say that I feel 100% confident that the information I received is from MetroCrimestoppers.

Posted by: Colin Miller | Aug 28, 2015 9:56:09 AM

If the tip was about Jay in any way, how could they not have gotten a warrant and searched his house? I think that either makes it impossible, or makes the cops totally incompetent. Or both!

Posted by: shameless_drunken | Aug 28, 2015 10:31:43 AM

Collin, in all your research, have you found one instance in the history of the CrimeStoppers/CrimeSolvers organization where they've ever had to disclose a tipster?

Thanks!

Posted by: YouKnow,Right? | Aug 28, 2015 10:32:52 AM

I completely agree with Halbarad1104. In my opinion, the state should be required to hand over all documents and information in their possession to the defense. Under the current system, the prosecution is the arbiter of what is material and exculpatory. For the defense to get a new trial under Brady, they need to somehow discover on their own that evidence in the state's possession is material and exculpatory. It's almost certain that defendants are only capable of proving this in a tiny minority of cases where prosecutors have actually withheld Brady material.

If police and prosecutors were required to turn over *all* documents, then the problem is completely avoided. Only material exculpatory evidence would actually be useful to the defense at trial anyway, so this shouldn't make things more difficult for the prosecution unless they were previously in the habit of withholding Brady material. To prove a discovery violation, the defense would only need to show the *existence* of a document that wasn't disclosed, a much lower bar. This avoids the catch-22 where the defense needs to somehow know the contents of undisclosed material in order to compel the state to disclose it.

I'm sure there are practical issues (e.g. a minor administrative mistake could void a conviction), but I really like the idea of strongly incentivizing the state to be open with it's documentation and evidence. Currently, the state has every incentive to be secretive with its investigation and to be as ungenerous as possible in its interpretation of "material and exculpatory." Surely that's not in the best interest of justice.

Posted by: Jon | Aug 28, 2015 10:36:38 AM

What do you think the likelihood is that the crimestoppers records, including the tipster's identity, still exist? And if they still exist would that only be held by the police/prosecutor's office or does crimestoppers itself retain that information?

Posted by: francis | Aug 28, 2015 10:37:39 AM

Is there any kind of presumption in a situation, like the one here, where you know a tip was made but it was not disclosed? For example, I know in civil cases that if a party destroys or refuses to produce a document that was requested and known to exist, there is a presumption that the document had information that was helpful to the other side. Could it be presumed here that since we know the tip was made, and it was never disclosed to the defense (and indeed, was covered up by the multiple investigators that testified), that the tip must have contained some kind of exculpatory evidence?

Posted by: Ann | Aug 28, 2015 10:39:57 AM

"I've come across several cases in which the State failed to disclose that CrimeStoppers tipsters pointed the finger at alternate suspects. In many of these cases, courts have deemed this information to be material exculpatory evidence, justifying a new trial under Brady."

BUt this only applies if the tipster said that Jay was the murderer rather than the guy who helped move the body, correct?

Posted by: ghostoftomlandry | Aug 28, 2015 10:44:34 AM

shameless_drunken: There’s a good chance the anonymous tip wasn’t specific enough to support a search warrant.

YouKnow,Right?: Several. For instance, a few days ago, I cited to Bolding v. State, 2012 WL 6838594 (Ct.App.Md. 2012), in which “Mr. Bolding uncovered the fact that the State had authorized the release of the funds to Stauffer on January 31, 2011, as a result of Mr. Bolding's subpoenaing Crime Stoppers Inc.'s records. (Trial T. vol. 9, pp. 18, 21-22).”

Jon: Many would agree with you.

francis: As per Metro CrimeStoppers, they no longer have the records, but the police should.

Ann: Yes, something like an adverse inference instruction. I imagine that if the BPD and BPCD claim that they have no documentation or officers with recollection of the tip/tipster, the judge would order some relief.

ghostoftomlandry: There are so many variables. Did the tipster say that Jay helped Adnan bury the body? Did the tipster say that Jay helped someone else bury the body? Did the tipster say the burial was in Leakin Park? Patapsco State Park? Etc.

Posted by: Colin Miller | Aug 28, 2015 10:47:25 AM

I just noticed something interesting on the Baltimore Metro Crime Stoppers website. It says that callers may receive a cash award "of up to $2000." Assuming it was the same in 1999, this would lend credence to the idea that the tip that earned only $575 perhaps had very little useful information other than that it pointed to Adnan. In the alternative, it could also lend credence to the theory that the tip pointed to Jay - maybe the tipster received less because Jay was only charged with accessory after the fact and not the actual murder.

Posted by: Ann | Aug 28, 2015 11:06:29 AM

Ann: I think the maximum was $1,000 back in 1999, but I'm not sure. In this case, however, $2,000 from private fundraising was supplemented by $575 from CrimeStoppers. The tipster recovered the full amount offered, not a percentage of the full amount.

Posted by: Colin Miller | Aug 28, 2015 11:31:51 AM

A lot of the argument seems to hinge on the tip(s) being received from Jay or other witnesses, as opposed to the police merely receiving tips on the missing person case from Adnan's community, other students, or from Hae's community or friends.

Here's a 1997 reference to Metro Crime Stoppers' policy of maintaining anonymity which is in line with the other Crime Stoppers programs and offering rewards up to $2,000. This leads me to the conclusion that the source's claim that MCS would know the caller's identity and in turn give this information to the police is not supported.

Baltimore Sun (MD), February 20, 1997
Section: News (Local)
METRO CRIME STOPPERS
John Rivera

"Police Blotter is a sampling of crimes in Baltimore and Baltimore County.
Northeastern District
Assault and robbery: A man was walking in the 1500 block of Havenwood Road yesterday afternoon when he was approached by another man who asked him if he had marijuana. Before the victim could reply, he was struck on the jaw by the assailant. Four or five other men then beat and kicked the victim, who was robbed of $20 in currency and a roll of quarters worth $10.
***
Call in tips: Readers with information on these or other crimes may call Metro Crime Stoppers' confidential 24-hour hot line, 276-8888. Names are not taken, calls are not recorded and rewards of up to $2,000 may be paid for information."

Here's a reference to Metro Crime Stoppers from 1991:
Baltimore Sun (MD), November 19, 1991
Section: News (Local)
CRIME STOPPERS GOING BROKE GROUP THAT PAYS REWARDS PLANS FUND-RAISING DRIVE.

Metro Crime Stoppers, which in 10 years has solved 1,200 crimes in the Baltimore metropolitan area and doled out more than $200,000 in reward money, is in need of money to continue its efforts.
***
The crime-fighting group, which offers rewards to informants who call over an anonymous hot line with tips about crimes, works closely with law enforcement agencies in Harford, Howard, Anne Arundel and Baltimore counties as well as in Baltimore City. It now hopes to raise $100,000 through donations from the public.

Agetstein said Metro Crime Stoppers, which has an all-volunteer staff, needs $40,000 to $50,000 to sustain the rewards given out. The rest would be used to help expand the program.

Since its inception in 1981, Metro Crime Stoppers has received 3,400 calls and helped recover property valued at half a million dollars, officials said."


The applicable law for confidential informants is better explained in Moore v. State, 195 Md.App. 695, 731-733 (Md. App. 2010).

"Under Rule 4–263(g)(2): The State's Attorney is not required to disclose the identity of a confidential informant unless the State's Attorney intends to call the informant as a State's witness or unless the failure to disclose the informant's identity would infringe a constitutional right of the defendant.

In Edwards v. State, 350 Md. 433, 440–41, 713 A.2d 342 (1998), the Court of Appeals stated:

The modern law governing the circumstances in which the State must disclose the identity of a confidential informant derives largely from three principles enunciated in Roviaro v. United States, [ ] 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 [ (1957) ]. The first principle was a reaffirmation of the well-established common law privilege possessed by the Government “to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law[.]” Id. at 59, 77 S.Ct. at 627, 1 L.Ed.2d at 644. That privilege, the Court said, is designed to encourage citizens to communicate their knowledge of criminal activity to law enforcement officials by preserving their anonymity and thus has as its purpose “the furtherance and protection of the public interest in effective law enforcement.” Id. The second principle announced in Roviaro was that the privilege of non-disclosure is limited by its underlying purpose and is further constrained by “fundamental requirements of fairness.” Thus, the Court held, “where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Id. at 60–61, 77 S.Ct. at 628, 1 L.Ed.2d at 645. Integration of those two principles produced the third—the requirement that, when presented with a defendant's demand for disclosure, courts must “balance the public interest in protecting the flow of information against the individual's right to prepare his defense.” Whether the balance requires disclosure, the Court added, “must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.” Id. at 62, 77 S.Ct. at 629, 1 L.Ed.2d at 646.

The Roviaro balancing process focuses on “ ‘the materiality of the informer's testimony to the determination of the accused's guilt.’ ” Edwards, 350 Md. at 442, 713 A.2d 342 (quoting Warrick v. State, 326 Md. 696, 701, 607 A.2d 24 (1992)). As the Court explained:

In that regard, courts have (1) drawn a distinction between an informant who actually participated in the criminal activity with which the defendant is charged, who may, as a result, have direct knowledge of what occurred and of the defendant's criminal agency, and who therefore may be a critical witness with respect to the defendant's guilt or innocence, on the one hand, and, on the other, an informant who is a mere “tipster”—a person who did nothing more than supply information to a law enforcement officer, who did not participate in the criminal activity and may not even have been present when it occurred, and who has little or no knowledge of the defendant's guilt or innocence, and (2) tended to require disclosure in the first situation but not in the second. Id."

Posted by: Nine9fifty50 | Aug 28, 2015 12:18:31 PM

Colin,

I don't understand what you are saying. How could there have been a tip implicating jay in a crime for which he was indicted, and yet he was never considered enough of a suspect to obtain a warrant. That makes no sense.

Posted by: shameless_drunken | Aug 28, 2015 12:38:37 PM

Nine9fifty50: We're all in agreement that CrimeStoppers does not know the identity of the tipster. Law enforcement, however, does know, which is why there was the effort in Maryland by CrimeStoppers to preclude LE from disclosing the identity of tipsters. As the Note accompanying that bill made clear, if the tipster is a witness, there has to be disclosure. All of this only makes sense if LE knows identity, which is what we noted on the podcast.

shameless_drunken: The possible thinking is that the State got Jay to cooperate before a search was done on his house.

Posted by: Colin Miller | Aug 28, 2015 1:45:27 PM

Colin, you keep stating that LE knows the name of the tipster, even when CS does not. You are not addressing my and other's incredulity over this, nor responded to our questions that such a system appears illogical and impossible to create. How would the police learn the name of the tipster?

Posted by: Ken | Aug 28, 2015 2:30:58 PM

Colin,

I have to commend you for how good you are about answering everyone's questions as they roll in on a daily basis. Thank you for that.

That said, has Southern Carolina started fall term yet? Do you anticipate being as engaged in this thing with classes starting or are you building all of this into your course(s).

I have to admit that my interest in this case was drying up about 3 weeks ago, but this whole tipster thing has reignited it. I cannot get over how complex and murky this case is...but when its all said and done I think everyone knows full well that Adnan is going to be a free man.

Jake

Posted by: Jake | Aug 28, 2015 2:57:03 PM

To be clear, I am not arguing that the police didn't know the name of the tipster *in this case*, just that it was common, or SOP for the police to know the name of the tipster at the time the tip was called in, i.e. long before the pay-out meeting. Speculating further, I think it is significant that the police knew the name of the tipster so early on.

Posted by: Ken | Aug 28, 2015 3:08:14 PM

Provided Adnan Syed is found to be innocent and released, how much can we expect to see as far as change/improvement in our legal system? I realize that is a loaded question, it's backed by 28 million (give or take a few) followers.

Posted by: call me curious George | Aug 28, 2015 4:32:13 PM

Colin,

You are suggesting its possible that Jay alone (not Jay and Adnan) was the accused in the tip, so then the police go to the person who was accused of a crime, he agrees to co-operate and tell them someone else did it and they had no idea it would happen, so then the police don't need to investigate that person as a suspect because they have given up the real culprit. Then as soon as they decided to indict jay, the person who said it was Jay is entitled to a reward.

Don't you see how this scenario is either impossible or it means that this most definitely would have needed to be revealed to the defense?

In other words, the police can't go to jay and say we suspect you of murder (but we are not going to get a search warrant, we want to know your side of the story first) and then Jay says, well, I was involved, but not THAT involved, and the police say, Oh, Ok, fair enough. We won't investigate you too intensely-thanks for the help.

That's crazy beyond incompetent.

Posted by: shameless_drunken | Aug 28, 2015 9:51:22 PM

Ken: At the latest, LE learns about identity at the time of the pay-out, when a LE official is present. Before that point, the tipster might identify himself, LE might be able to figure out the tipster’s identity based upon the information given, etc. Our source has confirmed this, I’ve found cases in which LE was forced to disclose identity, and the recent bill in Maryland was designed in part to prevent LE disclosure.

Jake: We started classes last week. I’ve always done a blog post a day, so my blogging shouldn’t change. As for podcasting, most of what we’re covering we’ve already researched, so there shouldn’t be an issue there.

Call me Curious George: I don’t know that this case will be the catalyst for change by itself, but I think that the totality of what we’re seeing might cause the government to look at what’s going on.

Shameless: As I said, I could imagine a few different scenarios. The tip could say, “Jay was involved.” It could say, “Jay and Adnan were involved.” It could say, “I heard Jay helped bury the body.” There are plenty of permutations, each of which could have a different legal consequence.

Posted by: Colin Miller | Aug 29, 2015 3:47:45 AM

Did MCS warn anonymous tipsters that their identity would become know to LE at the payout of the reward and that their identity and content of their tip could very well find its way to the defense and defendant, and that they may find themselves in a witness box testifying in court after all?

Posted by: dWakawaka | Aug 29, 2015 8:39:03 AM

dWakawaka: Good question. I would love to know more about the inner workings of CrimeStoppers.

Posted by: Colin Miller | Aug 29, 2015 3:34:39 PM

I would imagine it's possible for police to trace the calls to CrimeStoppers, even without CrimeStoppers logging the numbers, and they could get an idea of who was making the tip that way. This would mean that CrimeStoppers themselves do not need to know the identity of the caller, but that the police could independently find out the number of the caller and who the number is registered to, if they have the time and date of the tip (which it sounds like they do).

Posted by: Cupcake | Aug 31, 2015 3:57:21 AM