EvidenceProf Blog

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

Thursday, August 27, 2015

The Discoverability & Admissibility of CrimeStoppers Information in Maryland

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.] 



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Surely one alternative explanation is that one of the detectives was themselves interested in the bike, as a potential purchaser. Jay has obviously mentioned the bike but there's no real context and it seems to me that the detective noting down the mileage of the vehicle indicates a potential purchasers perspective rather than any useful evidence gathering. I can easily imagine one of the detectives making this note if he was interested in the bike. That would a!so explain why they 'interviewed' Coach Brown when they went to the school to interview the other teachers, mixing a little pleasure with business, and also explains why they checked the upto date KBB value that very same morning, if the price was right and it was still available they might make an offer. It explains why they noted that they were going to speak to the Coach about the motorbike-because they were, and why no notes were taken - because it wasn't actually part of the investigation at all, it was personal business. Once the coach told them he'd already sold the bike they would just have asked him the basic ' did you know Hae/Adnan/ etc' questions and that would have been it, no info so no notes and not surprising that their interest in the motorbike didn't stick in Coach Browns mind. It certainly seems possible that this could have happened this way, what do you think?

Posted by: liz | Aug 27, 2015 8:04:29 AM

I see the note as two separate points judging by the way indentations are used. I think the police are aware of the PI's investigations, perhaps with regard to Stephanie, and they also need to look into a reward for Jay. I don't think the PI is aware of the reward because if he knew of it, surely that would have come out.

Posted by: Dawn Johnson | Aug 27, 2015 8:05:10 AM

Hey Colin, this is good info thanks.

Do you know on what day NB's interview with Serial Dynasty will occur? Is he still going to go by NB during that interview or will we finally get to learn a bit more about him and how he fits into the general existence of all the involved parties in this case?

Posted by: Jake | Aug 27, 2015 8:09:47 AM

liz: As I said on the podcast, this is the only alternate scenario I can really imagine. I don’t know how it explains “REWARD” at the end of the ride-along notes, though. And we also know that Jay was looking to but a motorcycle according to Stephanie.

Dawn: The ride-along notes are very interesting. I have some real questions about when and by whom they were written. We will have more on them on Monday.

Jake: I think he will be on SD on Sunday. I’m not sure whether he’ll go by his real name.

Posted by: Colin Miller | Aug 27, 2015 8:15:18 AM

In the timeline graphic that Rabia linked to in her last blog post, it shows that Coach Brown's motorcycle was titled under a new owner on April 9, 1999. Is there any way to find to whom that title was issued? It might be possible then to show whether that person had any connection to Jay, and from there infer whether or not the Crime Stoppers tip money went to him. Though I must say I'm starting to really feel that the CS tip was *about* Jay -- it seems to fit because the money wasn't paid out until he was charged with a crime later that year.

The graphic:

Posted by: Colleen | Aug 27, 2015 8:24:47 AM

You state: 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."

This seems quite broad and gives the state ample discretion in NOT revealing the tipster's name. While I'd personally love to know who was the tipster and what they said, I can see the state using this provision to keep the information secret. Would you agree?

Posted by: Joanna | Aug 27, 2015 8:29:38 AM

I did a little digging and discovered that some crime stoppers organizations purge old records yearly. I couldn't find anything specific to Maryland unfortunately. I hope this isn't the case and the records are intact. Is this something that has been considered?

Posted by: Chris D. | Aug 27, 2015 8:41:15 AM

Piggy-backing off of Joanna's restating the "would endanger the life or physical safety of an individual, or would constitute an unwarranted invasion of personal privacy," do you think the State of Maryland could try to make the case that revealing the tipster's identity could place that person's life in jeopardy?

Let's just assume its Jay for the sake of argument. Could Maryland be truly concerned about his well-being if this info was leaked, regardless of Brady violations? We have to assume that there are some rather "wild" or "not-so-stable" followers of this case due to its being covered so closely by the mass-media, numerous podcasts, etc.

Its not unreasonable to think that some hard-core-Free-Adnan-nut might want to stalk and/or hurt Jay. Outside of the box perhaps, but you have to assume the State would try VERY hard to protect this info and could potentially use this type of rationale.

Posted by: Jake | Aug 27, 2015 8:41:22 AM

Liz - It looks like to me that the interview with Mr. Brown lasted 30 minutes (based on notations on the itinerary posted on the Undisclosed website). If you compare that to the amount of time they spent with others, it is a sizable amount of time, especially for someone that doesn't know anything. If they went to talk to him about the motorcycle and Mr. Brown indicated that he already sold it, what were they talking about for 30 minutes? I agree that the notes about the motorcycle and the KBB print outs seem like information that a buyer would be interested in, but that's the point. If they were trying to arrange for the reward to cover the cost of the motorcycle that Jay was interested in, these are exactly things that they would need to know. So if Mr. Brown had already sold the motorcycle, what the heck were they talking to him for 30 minutes for? In either scenario (looking at the motorcycle for Jay or for them), it is strange.

Posted by: narizarielka | Aug 27, 2015 8:42:55 AM

Colleen: We’re looking into it. The tip being about Jay would be an interesting twist and would definitely support a Brady violation.

Joanna: In that event, I think that there’s a clear compromise. You might recall the Nicolas case in which there was correspondence from the prosecutor’s office indicating, inter alia, that Gutierrez didn’t understand the lividity evidence. That correspondence wasn’t submitted directly to the defense. Instead, it was given to the judge for in camera review, with the judge then deciding that the defense needed to see it.

If the State has an objection to disclosing the CrimeStopper information to the defense, the compromise would seem to be to give it to the judge for in camera review. If the judge thinks it might contain Brady material, he would then disclose it to the defense.

Chris D.: CrimeStoppers no longe has information beyond when the tip was made and when it was paid out. The State, however, should have this information.

Posted by: Colin Miller | Aug 27, 2015 8:43:04 AM

Don't you have any concerns about a precedent where a convicted murderer can force the state to disclose the identity of an anonymous tipster? It seems to me this would endanger the lives of many people, and also eliminate virtually all anonymous tips in the future.

Posted by: Seamus_Duncan | Aug 27, 2015 8:52:00 AM

Seamus: I don't know how I feel about CrimeStoppers and the discoverability and admissibility of its tips. I would love empirical data about how many rightful convictions it facilitates vs. how many wrongful convictions it allows. For obvious reasons, however, such data collection would be impossible.

That said, I'm completely comfortable with the process I laid out in my prior comment: The State turns over its CrimeStoppers information to the judge to review in camera. If the judge thinks it possibly contains Brady material, he orders it turned over to the defense. If the judge thinks it does not contain Brady material, it is not turned over.

Posted by: Colin Miller | Aug 27, 2015 8:59:02 AM

"I have some real questions about when and by whom they were written. We will have more on them on Monday."

I know you said you will discuss this in more detail in the addendum. I am curious why you would propose this theory about the motorcycle based on theses notes that you have "some real questions about" and not discuss those real questions in the Episode 10?

Posted by: ghostoftomlandry | Aug 27, 2015 9:08:07 AM

ghostoftomlandry: I would have liked to go in depth about the ride-along notes in Episode 10, but it would have made the episode too long. That said, I don't think any of the questions we have about the notes cut against our theory.

Posted by: Colin Miller | Aug 27, 2015 9:32:14 AM

How can anyone other than the jury decide if evidence is exculpatory or inculpatory? Doesn't a defendant have a right to see all inculpatory evidence too due to the sixth amendment?

Posted by: Halbarad1104 | Aug 27, 2015 9:37:05 AM

Why would you think the Police know the identity of the tipster? The point of Crime stoppers is that the tip is relayed to the police anonymously. The only way they would have the tipsters name is if the tipster independently went to the police and told them they made the crime stoppers call.

Posted by: David | Aug 27, 2015 9:46:45 AM

Are there any consequences for the state in repeatedly failing to respond to an MPIA request (or failing to respond within time limits)? Are they breaking any laws? Is there anything the defence can do to force them to respond?

Posted by: Cupcake | Aug 27, 2015 9:46:58 AM

It's hard to imagine a scenario in this case in which revealing the identity of the tipster would put them in danger. Jay, Jenn, and others already testified so if they turned out to be the tipster, that doesn't change their situation. And if it turns out to be some other person, since nobody else has come to harm fifteen years later, it's hard to imagine a real threat.

Would this case really set a precedent for revealing an anonymous tipster? That seems like a weak argument, particularly since a judge still would have the option to keep identity covered up if harm seemed like a realistic possibility.

And as for a convicted murderer forcing anyone to do things, the tip should have been disclosed before the trial. Syed is just making the same request he would have done while still under the presumption of innocence, had the cops disclosed as they were required to.

Posted by: Mike | Aug 27, 2015 9:51:44 AM

Along the same lines as Joanna's question, it seems to me that even if the State had some discretion in determining whether to release the tipster's identity, it wouldn't have that same discretion with regard to releasing any documents showing the existence or contents of the tip. The State should have already disclosed any such documents in response to the prior MPIA requests. If anything had the tipster's name on it, it could have been redacted.

Posted by: Ann | Aug 27, 2015 10:15:14 AM

Halbarad1104: The prosecution has no overarching duty to disclose inculpatory information. That said, Jencks/Carr does require prior witness statements to be turned over, regardless of whether they are exculpatory or inculpatory. If the tip was made by a prosecution witness, it needed to be disclosed, even if it was inculpatory.

David: Our source at Metro CrimeStoppers told us that the police know. Also, an officer is there for the pay-out. Finally, if we’re right about the ride-along notes “REWARD” notation, they clearly knew.

Cupcake: I don’t know the ins and outs of the MPIA.

Mike: It wouldn’t set a precedent. I cited a few cases yesterday in which this information was revealed. There are several others. If there’s any concern, they could just do an in camera review.

Ann: Great point.

Posted by: Colin Miller | Aug 27, 2015 10:33:30 AM

David: Our source at Metro CrimeStoppers told us that the police know. Also, an officer is there for the pay-out. Finally, if we’re right about the ride-along notes “REWARD” notation, they clearly knew.

But that doesn't make sense. MCS is all about anonymity. So they offer a reward for anonymous tips, but the only way to collect the reward is to give up your anonymity by meeting with officers?

Posted by: David | Aug 27, 2015 10:42:27 AM

David: Tipsters are anonymous to the public but not anonymous to law enforcement, at least in Baltimore. Again, that is from a MCS source. Just look at this post. Why would Maryland CrimeStoppers organizations try to get a law passed to limit the discoverability of information about tipsters if there were complete anonymity? Indeed, the goal of the law was to prohibit law enforcement from revealing tipsters' identities, clearly implying that this has happened in the past.

Posted by: Colin Miller | Aug 27, 2015 10:47:20 AM

Everything I have read about MCS states that they encourage anonymity, but you can give your name if you choose. So, i guess my question is :If you call in with a tip, choose not to provide your name, you receive your anonymous tipster code, and then it turns out that your code results in an indictment. You call back and give your code and they confirm that your code paid out. Do they then say "Please provide us your contact information so that they police can give you the promised reward."

Posted by: David | Aug 27, 2015 10:55:25 AM

David: The MCS source said that law enforcement is there for the pay-out. I also don’t know why CrimeStoppers in Maryland would be fighting so hard to prevent law enforcement from being allowed to disclose the identity of tipsters if the only cases where that could be done were those where tipsters gave their names. It seems pretty clear that the bill was proposed because law enforcement was giving out the names of those who had wanted to maintain anonymity.

Also, look at the Note that I included in the post. I don't think it's entirely accurate, but it draws a distinction between tips made by testifying and non-testifying witnesses. If the police/prosecution don't know the identity of tipsters, how would they know this information?

Posted by: Colin Miller | Aug 27, 2015 11:21:08 AM

Is there a possible Jencks violation here too? Let's assume that the alleged tip doesn't contain Brady material. If any of the officers who testified wrote about the tip in a report, or perhaps even filled out the info sheet that Crime Stoppers uses to determine the amount of the award, would that be covered by Jencks?

Colin Note: This is the 25th and final comment that will post. Yes, any prior statement by a prosecution must be disclosed under Jencks.

Posted by: Ryan | Aug 27, 2015 1:10:14 PM

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