12. Disclose Informant
The following sample motion to disclose informant must be properly formatted with header information, line numbers, page numbers, etc. before being used in any court.
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TO THE COURT AND THE DISTRICT ATTORNEY: PLEASE TAKE NOTICE that at the date and time indicated above, or as soon thereafter as the matter can be heard in the above entitled court, the defendant will move that the Court order the prosecution to disclose the true identity and present whereabouts of the informants in the above case, or dismiss the accusatory pleading.
The motion will be made on the grounds that the informants are material witnesses on the issue of guilt or innocence in this action, and as such, the disclosure of the informants’ identities are essential to a full and fair determination of the case.
The motion will be based on this notice of motion, the attached declaration, the memorandum of points and authorities served and filed herewith, the records on file in this action and on such oral and documentary evidence as may be presented at the hearing.
Dated:
_____________________
By Elliot Magnus,
Attorney for Doug Dave
DECLARATION IN SUPPORT OF MOTION TO DISCLOSE INFORMANT
I, Elliot Magnus, Attorney for Defendant, declare:
1. According to the affidavit in support of the search warrant in this case (attached), officers received information from a witness only identified as “X” that several people were involved in trafficking methamphetamine, including Defendant.
2. The officer begins by referring to X in the singular, but then changes to the plural form, thus indicating that X actually refers to more than one person: “X told me they know a white male subject… they told me they recently have seen [Defendant] in possession of a large amount of methamphetamine.”
3. The affidavit goes on to explain that it is actually Bart Baddy who “holds the methamphetamine at his residence…”
4. These informants are alleged to have had knowledge as to who was in the home, who owned the home, and who was selling narcotics.
5. Defendant contends that another person was responsible for the drug sales (possibly one of the informants or Bart) and that Defendant had no connection with the narcotics.
6. A reasonable possibility exists that one or more of the informants, whose true number is unknown, was also an eyewitness to the crimes alleged and could give evidence on the issue of guilt or innocence in this action that would result in the exoneration of the Defendant.
7. Significantly, the informants each appear to know that “Bart” possessed the methamphetamine. This gives rise to an obvious third party culpability defense, and these informants can each give exculpatory testimony.
8. At a minimum, the informants should be able to testify that Bart owned the residence and possessed the methamphetamine that was found therein.
9. Further, the affiant makes conclusory statements concerning the reliability of the informants, but it is clear that X is representative of multiple people, some of whom may not be reliable and/or may have themselves been involved in the sales of methamphetamine. The affidavit is unclear as to how many people are represented by X, why the officer believes one or more of them is reliable, and what portion of the information he received from each person represented by X.
Dated:
_________________
By Elliot Magnus,
Attorney for Doug Dave
POINTS, AUTHORITIES, AND ARGUMENT
A DEFENDANT MAY MAKE A MOTION FOR AN ORDER REQUIRING THE PROSECUTION TO DISCLOSE THE IDENTITY OF AN INFORMER WHO IS A MATERIAL WITNESS ON THE ISSUE OF THE DEFENDANT’S GUILT
In Honore v. Superior Court of Alameda County (1969) 70 Cal. 2nd 162, 167, the California Supreme Court held that a motion for pretrial discovery is the proper vehicle for seeking disclosure of the identity of an informer who is a material witness on the issue of the guilt of the defendant.
The record reveals that both in the municipal court and in the superior court defendants essentially sought only the disclosure of the identity of the informer because they deemed him to be a material witness on the issue of guilt. . . .The proper method of obtaining such information is by use of a motion for pretrial discovery and not by use of the procedure established by Pen C §1538.5.
THE DEFENDANT HAS MADE A PRIMA FACIE SHOWING OF MATERIALITY BY DEMONSTRATING THAT THERE IS A REASONABLE POSSIBILITY THE INFORMANTS MIGHT EXONERATE THE DEFENDANT
The California Supreme Court has established the burden of proof necessary to demonstrate a prima facie showing of materiality in order to require the disclosure of an informant’s identity.
[A] defendant seeking to discover the identity of an informant bears the burden of demonstrating that, “in view of the evidence, the informer would be a material witness on the issue of guilt and nondisclosure of his identity would deprive the defendant of a fair trial.” (citations). That burden is discharged, however, when defendant demonstrates a reasonable possibility that the anonymous informant whose identity is sought could give evidence on the issue of guilt which might result in defendant’s exoneration.
(People v. Garcia (1967) 67 Cal. 2nd 830, 839-840).
To be a material witness, the informant need not be present at the time of the arrest. (People v. Williams (1958) 51 Cal. 2nd 355). A defendant need not demonstrate that an informant would give favorable testimony or show what the informant’s testimony would be. (People v. Tolliver (1975) 53 Cal. App. 3rd 1036, 1043) Rather, the accused need only show that the informant was “in a position to perceive. . . either the commission or the antecedents of the alleged crime.” (People v. Ingram (1978) 87 Cal. App. 3rd 832, 839) The controlling Supreme Court decisions have been analyzed as follows:
. . .the evidentiary showing required by those decisions is not as to the exculpatory nature of the informer’s potential testimony but merely as to the quality of the vantage point from which the informer viewed either the commission or the immediate antecedents of the alleged crime. The noted Supreme Court cases ask in effect, “What was the informer in a position to perceive?” If the evidence shows that the informer had a sufficiently proximate vantage point, those Supreme Court decisions simply speculate concerning the informer’s potential testimony and hold that the defendant has demonstrated a reasonable possibility that the informant could give evidence which might result in the defendant’s exoneration. Speculation as to such an informer’s testimony is consistent with cases which discern a constitutional right in the accused to seek out the informer to inquire what he knows.
Williams v. Superior Court (1974) 38 Cal. App. 3rd 412
THE COURT MUST ORDER THE PROSECUTION TO DISCLOSE THE IDENTITY OF AN INFORMER WHO WAS AN EYEWITNESS TO THE CRIME CHARGED AGAINST THE DEFENDANT
The identity of an informant who was an eyewitness to the crime charged against the defendant must be disclosed to the defense. In People v. Goliday (1973) 8 Cal. 3rd 771, 782, the Supreme Court held as follows:
We emphasize that the eyewitness informers involved here acted as police agents at the time of the alleged sale. The police bear no duty to obtain information about a person who is not a material witness, who ‘simply points the finger of suspicion toward a person who has violated the law.’ [Citation omitted.] If, however, a material witness serves as an agent of the police and becomes a material witness on the issue of guilt, his desire for anonymity must yield to the interest of the accused in a fair trial. The police, accordingly, must undertake reasonable efforts to obtain information by which the defense may locate such an informer.
Likewise, in People v. McShann (1958) 50 Cal. 2nd 802, 808, the court stated:
Disclosure is not limited to the informer who participates in the crime alleged. The information elicited from an informer may be ‘relevant and helpful to the defense of the accused or essential to a fair determination of a cause’ even though the informer was not a participant. For example, the testimony of an eyewitness-nonparticipant informer that would vindicate the innocence of the accused or lessen the risk of false testimony would obviously be relevant and helpful to the defense of the accused and essential to a fair determination of the cause.
Where the informant is an eyewitness to the transaction which is the basis for the charges against the defendant, the court cannot determine the materiality of the possible testimony of the informant without having the informant testify at an in-camera hearing (People v. Ruiz (1992) 9 Cal. App. 4th 1485).
THE COURT MUST ORDER THE PROSECUTION TO DISCLOSE THE IDENTITY OF AN INFORMER WHO IS A MATERIAL WITNESS ON THE ISSUE OF GUILT
The identity of an informant who is a material witness on the issue of guilt must be disclosed to the defense. This principle was articulated by the Supreme Court in People v. Garcia (1967) 67 Cal. 2nd 830, 838:
In the instant case . . . we are concerned with informants who neither were participants in the alleged crime nor were eyewitnesses thereto. We have concluded that the relevant circumstances require that such informants be deemed material witnesses for the defense of defendant Garcia, and that the court’s refusal to order disclosure of their identities upon proper request for such disclosure deprived defendant Garcia of a fair trial and requires that the judgment against him be reversed.