Unnecessary Evil - Tools for Lawyers: Resources for Tackling Informants in Court


Alexandra Natapoff, Snitching: The Institutional and Communal Consequences >>
Professor Natapoff is one of the country’s leading legal experts on the government’s use and misuse of informants to investigate and prosecute criminal cases. This article provides an excellent overview of the baleful influences the widespread use of criminal informants has had – not just on the legal system, but also in low-income urban communities.

United States v. Cervantes-Pacheco >>
The majority of the 5th Circuit approves the government’s payment of a contingent fee to a serial informant in a drug case. Judge Rubin’s concurring opinion states that the testimony of such an informant is admissible but the payment of a contingent fee to a witness violates ethical canons.
826 F.2d 310 (5th Cir. 1987)

United States v. Singleton  >>
A unanimous panel of the Tenth Circuit held that the government violated 18 U.S.C. § 201(c)(2), which punishes “[w]hoever . . . gives, offers, or promises anything of value to any person for or because of” that person’s testimony, by entering into a nonprosecution and leniency agreement with a cooperating coconspirator.
Reversed >>
The court en banc subsequently reversed the panel, holding that the word “whoever” in the statute does not include prosecutors acting as the “alter ego” of the United States exercising its sovereign power of prosecution.
144 F.3d 1343 (10th Cir. 1998), rev’d, 165 F.3d 1297 (10th Cir. 1999) (en banc)

 

Relevant California ethical rules for lawyers >>
This document lists the text of California rules and statutes which are relevant to the representation of informants. Included also are rules relevant to ethical problems involved in joint defense agreements.

Relevant ABA ethical rules for lawyers >>
This document lists the text of rules and statutes which are relevant to the representation of informants under the ABA Model Rules of Professional Conduct.

United States v. Lopez >>
A fascinating case in which the government, helped by a defense attorney and authorized by a magistrate judge, goes behind an attorney's back to negotiate a plea deal with his client. The district court dismisses the indictment, and while the Ninth Circuit agrees that the government breached its ethical duties, it reinstates the charges.
4 F.3d 1455, 1464-67 (9th Cir. 1993)

In re Maternowski >> 
The Indiana Supreme Court suspends for 30 days two lawyers who had a policy of not representing clients who cooperated with the government. It found that they had placed themselves in “an impermissible conflict situation” by advising a “vacillating” client against cooperation.
674 N.E.2d 1287 (Ind. 1996)

JOINT DEFENSE AGREEMENTS

 

John T. Philipsborn, Organizing and Directing Multiple Client Cases: Joint Confidentiality and Defense Agreements >>
A review and analysis of some of the California law that helps to protect common or joint communications and work product where several lawyers are representing co-defendants in a specific case.

United States v. Stepney >>
In this case involving a joint defense agreement, Northern District of California Judge Marilyn Hall Patel discusses several questions at length:  (1) a court’s power to inquire into – and dictate the terms of – joint defense agreements; (2) whether there could be an enforceable general duty of loyalty in a joint defense agreement; and (3) the kind of waiver of confidentiality which was required to be included in a joint defense agreement.
246 F. Supp. 2d 1069 (N.D. Cal. 2003)

RELIABILITY HEARINGS

 

Dodd v. State >>
This case imposes particular discovery requirements on the government when it uses jailhouse informant testimony.  The concurring opinion argues that a Daubert-like reliability hearing is necessary.
993 P.2d 778 (Okla. Ct. Crim. App. 2000)

D’Agostino v. State >>
A defendant has been sentenced to death based on jailhouse informant testimony about two murders the defendant had supposedly committed in the past.  The Nevada Supreme Court mandates a reliability hearing for such situations.
823 P.2d 283 (Nev. 1991)

 

United States v. Sudikoff >>
After a defendant moved to compel the release of information relating to proffer agreements between a prosecution witness and the government, the district court discussed what standard a defendant had to meet in order to compel information material to his or her defense.
36 F. Supp. 2d 1196 (C.D. Cal. 1999)

 

A Look Inside the Other Team’s Playbook: Informant Materials for Prosecutors
Judge Stephen Trott of the U.S. Court of Appeals for the Ninth Circuit has generously agreed to provide his outline and accompanying materials from a lecture he has developed for training prosecutors concerning the use of informants in criminal cases.
Lecture outline >>
Checklist for prosecutors utilizing an informant’s testimony >>
“Dos and don’ts” for prosecutors using a criminal informant >>

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