Confidential Informants, Motions to Reveal Identity, and Discovery: Part I, Roviaro v. U.S.

Today I begin a series of blog posts discussing the law around confidential informants, motions to reveal identity, and discovery. Technological developments have made it more common for law enforcement to document the activity of a confidential informant (“CI”) through video and audio recording. This change raises challenging legal questions, such as whether the identity of the confidential informant must be revealed to the defense and what must be turned over in discovery. Today’s post discusses the landmark case of Roviaro v. U.S. and introduces the basic issues, focusing on the factors that weigh toward or against the disclosure of the CI’s identity to the defense. Future posts will discuss the relevant statutes, key state cases, and federal courts’ analysis of these questions, along with procedural and strategic considerations. The law on confidential informants and specifically, when the State must reveal the identity of the CI to the defense, is grounded in Roviaro v. U.S., 353 U.S. 53 (1957). Roviaro has been cited more than 5,000 times by subsequent courts. The Roviaro Court expressly declined to create a “fixed rule,” instead setting forth a framework for analysis. The basic test involves determining whether the CI was an “active participant” in the crime alleged (State must likely disclose identity) or more of a “tipster” (State may likely withhold identity). However, the analysis has been refined and explicated in the lower courts, as the U.S. Supreme Court has not addressed the issue in depth since the 1950’s and 60’s. See Roviaro; McCray v. [...]