Can the State Withhold the Identity of a Confidential Informant (“CI”) in Florida?

In Florida, many drug cases begin when a confidential informant, or CI, provides information to the police about another person using, selling, trafficking or manufacturing illegal drugs. This often occurs after the confidential informant is arrested on his/her own charges and wants to make a deal with the police or the state to reduce his charges or sentence. The CI will provide information to the state, or perhaps work for the state by making a controlled drug buy, allowing the state to make a case against someone else.

When a confidential informant gives information to the police or the state that they use to get a search warrant, search a house for illegal drugs and then arrest one of the residents of that house, that other person will have a pending criminal drug case. Normally, during that trial, that defendant will have a right to see all of the evidence and learn of all of the witnesses that the state believes proves his/her guilt and that the defendant needs to prepare his/her defense.

Can the defendant’s criminal defense lawyer force the state to disclose the identity of the CI? It depends. While the state is obligated to give the criminal defense attorney all of the relevant evidence in the case, the state does have a limited right to withhold the identity of confidential informants in some situations. The purpose of this rule is to protect and encourage people who provide information about criminal activity to the police. However, a criminal defendant has a Constitutional right to know of any and all information that helps the defendant defend him/herself against criminal charges.

Those two principles are balanced out in Florida law by requiring the state to disclose the identity of a confidential informant in two situations. First, if the state plans to have the CI testify against the defendant in a trial or pretrial hearing, the state must alert the criminal defense lawyer and disclose the identity of the CI so the criminal defense attorney has the chance to talk to the CI and see what he/she has to say. Second, the state has to tell the criminal defense attorney about the CI if failure to disclose the CI would infringe on the defendant’s Constitutional rights. In other words, if the criminal defense lawyer can show that the CI is necessary for the defendant to advance a particular defense in the case, the state will likely have to disclose the identity of the confidential informant so the criminal defense attorney can adequately prepare that defense for the defendant. To conceal the identity of the CI when the defendant needs to know about him/her to defend him/herself would violate the defendant’s Constitution right to confront witnesses against him/her and the right to a fair trial.

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