Consider a scenario where a Jacksonville police officer suspects a person is involved with illegal drugs (such as marijuana, cocaine, heroin, ecstasy or methamphetamine) and enlists the help of a confidential informant (aka a CI) to set up a drug deal with that person. For instance, the Jacksonville police officer may ask the CI to ask the suspect to deliver a container with drugs to another person who happens to be an undercover Jacksonville Sheriff’s Office officer. The police officer may encourage the CI to do this by offering money or a good deal on criminal charges the CI is currently facing. So, the CI approaches the suspect and tells him that the CI will give the suspect some money if the suspect takes the container, delivers it to another person and returns with the money the other person gives him. When the suspect delivers the container, he is arrested by the undercover police officer.
The suspect is then charged with a drug possession and/or distribution crime. At the trial, the suspect’s criminal defense lawyer wants to know who this CI is so the CI can be questioned about the suspect’s role in this incident. In Florida, does the State have to reveal the identity of the CI to the criminal defense attorney?
Normally, in a criminal prosecution in Florida, the State has a limited right to withhold the identity of a CI. Of course, if the State intended to call the CI as a witness at the trial, the State would have to alert the defense to that fact and give the defense the information identifying the CI. But assuming the State does not intend to call the CI as a witness at trial because the State feels they can prove their case with the testimony of the undercover officer alone, the criminal defense lawyer could still force the State to reveal the identity of the CI if he/she can establish that the CI is relevant and helpful to the client’s defense. For instance, in this case, the CI may be helpful to establish two possible defenses. The first would be the defense of entrapment which is further discussed here. The second defense would be that the suspect did not know that drugs were in the container he delivered. The testimony of the CI could be relevant and helpful for either defense. If so, the defense may be successful in learning the identity of the CI and using him/her as a witness for the defense at trial.