DOJ Guidelines on Confidential Informants

Here is a worthwhile publication to read before you cross-examine a federal confidential informant, the DEPARTMENT OF JUSTICE GUIDELINES REGARDING THE USE OF CONFIDENTIAL INFORMANTS. The Guidelines were last published (as far as I can tell) on January 8, 2001 and provide about 25 pages of rules that federal law enforcement agencies “shall” follow when dealing with confidential informants. The Guidelines expressly state that they do not create legal rights for anyone, so a breach of the Guidelines is not likely to lead to suppressed evidence or dismissal of a charge. If nothing else, however, a breach of these rules may provide a basis for impeachment of the agent or the information provided through the rules may provide a basis to impeach the informant. For example, prior to utilizing a person as a CI, the case agent must complete an Initial Suitability Report and Recommendation. Among other things, the suitability report must include a description of the “person’s motivation in providing information or assistance, including any consideration sought from the government for this assistance.” If the CI admits to a dark motive, that impeaches the CI. If you know of the CI’s dark motive, but he does not admit it to the agent, that also impeaches the CI. Perhaps the best scenario is if the agent and CI disagree on what the CI admitted about his motive. The agent may record on the form a bland motive for the CI’s cooperation and the CI might admit to a dark motive for the cooperation on cross. In this situation, the CI either lied to the agent about his true motivation or the agent lied on the form about the CI’s true motivation. In either case the answer tends to impeach the CI or agent.

The Guidelines provide that federal law enforcement agencies “shall develop agency-specific guidelines that comply with these Guidelines, and submit such agency-specific guidelines to the AAG for the Criminal Division for review.” Thus, it is worthwhile to look at the specific rules promulgated by whichever federal law enforcement agency is involved with your CI as well.

About Rob Ruth

Rob Ruth is a CJA attorney and the CJA Panel Representative for the Western District of Wisconsin
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