When is your defense entitled to a confidential informant’s identity?
Drug charges in Pennsylvania are either misdemeanor or felony offenses. A misdemeanor drug charge is for the simple possession of any drug or controlled substance. This would include illegal substances such as cocaine, heroin, crack, marijuana and PCP and legal substances not prescribed by a doctor such as Xanax, Oxytocin, Percocet, and Suboxone. Unlike simple possession, possession with the intent to deliver (PWID) is an ungraded felony offense in Pennsylvania which subjects a person to a state prison sentence. I have written previous articles on the difference between PWID and simple possession and I encourage you to read them. Many PWID allegations involve confidential informants. Confidential informants or “CIs” are used by police to purchase drugs (controlled buy).
These purchases often form the basis for Affidavits of probable cause to obtain search warrants for homes or vehicles or “warrantless” searches made on streets in Philadelphia or other counties in Pennsylvania. If a criminal case involves a confidential informant your criminal defense attorney must make a motion asking the court to reveal the identity of the confidential informant if he believes that if could help your criminal case. CI motions aren’t just useful in PWID drug cases but also in cases involving illegal guns (VUFA) or any cases involving contraband.
The prosecution is never required to reveal the identity of the CI unless a court orders them to do so. A court will only order the prosecution to reveal the identity of a CI if the defense establishes that the informant’s identity is material to the preparation of the defense. This is a rule of Pennsylvania criminal procedure (Rule 573 (B)). Even if the defense proves that the identity of the CI is material and reasonable the court can still deny the request using a balancing test. This test balances the public interest and the police’s ability to obtain information vs. the defendant’s right to a defense. The court in these situations considers the crime, the potential defense, and the significance of the CI’s testimony.
In a recent case (Commonwealth v. Jordan) the Pennsylvania Superior Court found that the identity of the confidential informant wasn’t material to a defense after a prosecution agreed to stipulate (allow into evidence without objection) that the CI had given the alleged co-conspirator the “buy money” and the co-conspirator handed him crack cocaine. Due to this stipulation, Superior Court found that the identity of the CI was neither exculpatory nor material to the defense of PWID.
CI motions are a valuable tool to your criminal defense in Pennsylvania that your criminal defense lawyer should utilize to defend drug, gun, or any other crimes involving contraband. If you have more questions about criminal defense strategies you should watch one of my videos, read my books, or subscribe to our mailing list to receive our free monthly newsletter.
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