Confidential Informants, Motions to Reveal Identity, and Discovery: Part III, How to Handle the Video

This is Part III of a multi-part series on confidential informants. Earlier posts focused on the foundational concepts of U.S. v. Roviaro, 353 U.S. 53 (1957), here, and the applicable North Carolina statutes here. Today’s post explores the novel issues that arise as more and more confidential informant (“CI”) interactions are recorded on video. The tension between concealing the CI’s identity for the CI’s protection and revealing the CI’s identity to ensure that the defendant has a fair opportunity to challenge the State’s case has been highlighted in earlier posts. However, the existence of video evidence introduces new complexity and nuance into the dilemma. Where the State attempts to withhold video evidence depicting the CI’s involvement, defense counsel may justifiably object that a rich trove of information from the investigative file is being denied to the defendant in contravention of G.S. 15A-903 (“Disclosure of Evidence by the State”). The video may contain key details such as location, pattern of behavior, body language, or statements (when the video includes audio). The State may counter that turning over the video all but assures that the CI will be put in danger, as even where the CI’s name is kept secret, the CI’s face, appearance, or other identifying information may be gleaned from the recording. Four options The following four options of limiting or modifying disclosures may be useful in balancing the competing concerns while navigating constitutional and statutory requirements. For the court to approve of the options below, the State must likely make [...]