Federal Judicial Treatment of Informers - Admissibility, Credibility and Constitutional Considerations

SMU Law Review Volume 21 | Issue 4 Article 12 1967 Federal Judicial Treatment of Informers Admissibility, Credibility and Constitutional Considerations Albert D. Hoppe Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Albert D. Hoppe, Federal Judicial Treatment of Informers - Admissibility, Credibility and Constitutional Considerations, 21 Sw L.J. 835 (1967) https://scholar.smu.edu/smulr/vol21/iss4/12 This Case Note is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. Federal Judicial Treatment of Informers - Admissibility, Credibility and Constitutional Considerations The federal1 government's use of informers, paid and unpaid, is undeniably widespread, valuable in criminal law enforcement, and constitutionally suspect However, as vital as their services may be to law enforcement officials, informers would be little used were it not for the judicially approved rule that "artifice and stratagem may be employed to catch those engaged in criminal enterprises. ' This Note examines the judicial treatment of informers' testimony, its admissibility, and the basis for constitutional attack, noting that all of these aspects" are inseparably related. An informer is one who voluntarily reports law violations or suspected violations to an agent of the government.5 Although the informer is often a public-spirited citizen,' he may instead be one who has participated in a crime and subsequently turned against his partners; a "plant" employed by law enforcement agencies to participate in the commission of a crime;' ' Since there is no appreciable difference between state and federal treatment of informers, this Note primarily focuses on informers at the federal court level, with an incidental consideration of them at the state level. Similarly, focus is on trial considerations; the pre-trial use of informers to prompt confessions by suspects is not treated. Entrapment, a closely related but distinguishable field, is necessarily omitted. a See Donnelly, Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs, 60 YALE L.J. 1091 (1951). Although the informers themselves have generally elicited the concurrent reactions of contempt and aversion, police forces the world over see wisdom in the extensive use of such persons, for the role they play in criminal law is of great magnitude. 'Sorrells v. United States, 287 U.S. 435, 441-42 (1932). See also Lewis v. United States, 385 U.S. 206 (1966); Price v. United States, 165 U.S. 311, 315 (1897); Andrews v. United States, 162 U.S. 420, 423 (1896); Rosen v. United States, 161 U.S. 29, 42 (1896); Goode v. United States, 159 U.S. 663, 669 (1895); Grimm v. United States, 156 U.S. 604, 610 (1895); United States v. Reisenweber, 288 F. 520, 526 (2d Cir. 1923); Bates v. United States, 10 F. 92, 94 (C.C.N.D. Ill. 1881). ' Another aspect is the "informer's privilege," not treated separately, but definitely to be kept in mind, since it is probable that few persons would be willing to impart information to the police without absolute promise of secrecy. The privilege, assertable by either the government or the court, provides that in the absence of statute, disclosure of the informer's identity ordinarily will not be compelled. Roviaro v. United States, 353 U.S. 53 (1957); Mitrovich v. United States, 15 F.2d 163 (9th Cir. 1926); People v. Lawrence, 149 Cal. App. 2d 435, 308 P.2d 821 (1957). The privilege forbids only nonessential disclosure; disclosure may always be compelled in cases where identity of the informer appears essential to the defense. Scher v. United States, 305 U.S. 251 (1938); Portomene v. United States, 221 F.2d 582 (5th Cir. 1955). An undecided related issue is whether to permit nondisclosure of the contents of the informer's report. For nondisclosure, Vogel v. Gruaz, 110 U.S. 311 (1884); Lewis v. Roux Trucking Corp., 222 App. Div. 204, 226 N.Y.S. 70 (1927); Dellastastious v. Boyce, 152 Va. 368, 147 S.E. 267 (1929). Contra, Scher v. United States, 305 U.S. 251 (1938); 8 J. WIoMORE, EVIDENCE § 2374 (8th ed. 1961). 'BLACK'S LAw DICTIONARY 919 (4th ed. 1951). Other definitions proliferate, e.g., United States v. City of Mexico, 32 F. 105, 106 (S.D. Fla. 1887) (one whose information leads directly to a legal proceeding); Pollock v. The Laura, 5 F. 133, 141 (S.D.N.Y. 1880) (a person who lodges which leads to a suit brought by the government itself); information with a government officer Western Union Tel. Co. v. Nunnally, 86 Ga. 503, 12 S.E. 578 (1891) (a person who informs or procures an action against another, whom he suspects of the violation of some penal statute). A variety of motives are ascribed as to what would prompt one to be an informer: promises of immunity or leniency, revenge, fear, money, jealousy, friendship with members of the police force, or even a desire to seek out criminals for society's sake. See Donnelly, supra note 2, at 1092. 'Crosby v. State, 90 Ga. App. 63, 82 S.E.2d 38, 39 (1954). This type is considered a "feigned accomplice" and thus is not subject to traditional accomplice rules if he merely feigns complicity in the commission of crimes for the purpose of securing evidence (and if his conduct falls short of entrapment), since he will be lacking in the requisite criminal intent. Smith v. United States, 17 F.2d 723 (8th Cir.), cert. denied, 274 U.S. 762 (1927); Lett v. United States, 15 F.2d 690 (8th Cir. 1926); Finley v. State, 84 Okla. Crim. 309, 181 P.2d 849 (1947). This same reasoning applies to paid informers. Smith v. United States, supra. The SOUTHWESTERN LAW JOURNAL [Vol. 21 and one urged by the government to uncover evidence of crime.8 As will be seen, these latter sources of information are most subjected to court attack on constitutional grounds. And their proffered testimony often raises issues of credibility and admissibility. I. INFORMERS' TESTIMONY AND CREDIBILITY The evidentiary field presents recurring problems of admissibility and credibility. The general rule is that an informer's testimony is considered competent and is to be weighed like the testimony of any other witness.9 When so weighed, it may be sufficient to sustain a conviction, ° even though the testimony is not corroborated." As to admissibility of the informer's testimony, the common law rule was that evidence which met the tests of relevancy and verity was admissible." The fact that it was illegally obtained was immaterial because the courts would not inquire into the circumstances of the acquisition of material evidence." Today admissibility is more restricted; evidence obtained by illegal means is no longer constitutionally admissible. " Otherwise, the standards for admissibility are still quite liberal. Eavesdropping, for example, is still condoned. Generally, the (...truncated)