Thursday, August 27, 2015
The next big question in the Adnan Syed case is whether and when the State will disclose the identity of the CrimeStoppers tipster and the content of his or her tip. The one thing I am confident about is that the State should be required to disclose this information. The reason for this is that, as I noted on the podcast, attempts to limit the discoverability and admissibility of such information in Maryland have been shot down.
One of these efforts was described in this article. According to the article,
Maryland’s Crime Stoppers organizations are fighting for legislation for the right to be able to guarantee tipsters anonymity when they call to report crimes or details about crimes. However, they might not be able to guarantee total anonymity.
Sen. Thomas "Mac" Middleton, D-Charles, introduced a bill that would make evidence provided by tipsters, including any communication between the tipster and Crime Stopper volunteer, inadmissible in court. The bill also prohibits law enforcement from revealing the tipster’s identity.
This bill was most recently considered in 2014, and it was accompanied by a Fiscal and Policy Note, which described the existing law in Maryland:
Current Law: There are no provisions in State law that specifically exclude from evidence reports made to organizations that help law enforcement agencies solve crimes or the identities of individuals who provide tips to these organizations under a promise of anonymity.
Under the Public Information Act, a custodian may deny inspection of investigatory records if the inspection would disclose the identity of a confidential source, would endanger the life or physical safety of an individual, or would constitute an unwarranted invasion of personal privacy. (See State Government Article, § 10-618.)
In a criminal case, the prosecution has a duty to disclose material, exculpatory evidence to the defense. However, information pertaining to confidential informants not intending to testify is not discoverable.
The State may withhold the identity of an informant “to further and protect the public’s interest in effective law enforcement.” Faulkner v. State, 73 Md. App. 511, 519, 534 A.2d 1380, 1384 (1988) quoting Howard v. Smith, 66 Md. App. 273, 285-86, 503 A.2d 739 (1986). However, this privilege may be rebutted by a preponderance of the evidence showing that information concerning the informant is necessary and relevant to a fair defense. The court does not have to exercise this discretion unless the defense properly demands the disclosure of an informant’s identity. Courts have also distinguished informants who actively participated in the crime or activities associated with the crime from tipsters who were removed from the crime and merely provided pertinent information to law enforcement or affiliated organizations.
As you can see, consistent with Brady v. Maryland, the prosecution had a duty to disclose evidence related to the CrimeStoppers tip to the defense in Adnan's case if it constituted material exculpatory evidence. As you can also see, under Maryland's Public Information Act, the custodian is only supposed to deny inspection of the tipster's identity if disclosure "would endanger the life or physical safety of an individual, or would constitute an unwarranted invasion of personal privacy."
In other words, the State should have already produced this information in response to prior MPIA requests, and it should certainly produce it now.
[Update: In the Note above, it states that "information pertaining to confidential informants not intending to testify is not discoverable." I wanted to note that this statement is clearly incorrect. As one example, I've come across a few cases in which courts found Brady violations based upon the failure to disclose CrimeStoppers tips pointing toward alternate suspects." In those cases, for obvious reasons, the tipsters were not called as witness. As another example, in Kyles v. Whitley, "Beanie" did not testify. By no means does every CrimeStoppers tip need to be disclosed in every case, but clearly tips by nontestifying tipsters can form the basis for a Brady violation.]