A reoccurring question is whether a person charged in a drug case has the right to know the identity of the informant used by the police to make the case.  The answer turns, in part, on whether the informant is a “mere tipster” or actually participated in or witnessed a hand-to-hand transaction.  This blog post addresses the situation when the informant participates in or witnesses the hand-to-hand transaction.

Although the United States Supreme Court has recognized there is an informer’s privilege, “[w]here the disclosure of an informer’s identity . . . is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.”  Roviaro v. U.S., 353 U.S. 53, 61 (1957).  In Roviaro, the Supreme Court reversed a conviction where the informant and defendant were the sole participants, and the government refused to reveal the informant’s identity.  Roviaro, accordingly, recognized a due process right to disclosure of the informant’s identity in these situations.

When the informant is a participant or witness in the alleged hand-to-hand transaction, South Carolina has consistently required disclosure of the informant’s identity and impeachment evidence.  These cases include:

• In State v. Diamond, 280 S.C. 296, 312 S.E.2d 550 (1984), citing to Roviaro, our Supreme Court observed, “Evidence of entrapment, misidentification, intent or knowledge is available only to persons who actively participate in a transaction.”  Our Supreme Court then held, “Public policy considerations for nondisclosure of an informant’s identity are absent where the informant openly participates in the criminal transaction.”
• In State v. Blyther, 287 S.C. 31, 336 S.E.2d 151 (Ct. App. 1985), our Court of Appeals, following Diamond, held the prosecution must reveal identity of informant when “the informant introduced the officer to the drug dealer and witnessed the transaction.”  The Court of Appeals also found it significant that “the defendant was not arrested immediately after the sale but was arrested months later.”

Disclosure of the informant’s identity would be meaningless unless the accused has a “reasonable opportunity” to investigate, locate, and interview the informant.  See State v. Burns, 294 S.C. 338, 364 S.E.2d 465 (1988).  In addition to allowing the defense to investigate the informant, our Supreme Court held the prosecution must “reveal the deal” between the state and a witness before trial.  See State v. Hinson, 293 S.C. 406, 361 S.E.2d 120 (1987),

Rule 5(a)(1)(C), SCRCrimP requires the prosecution to disclose all evidence the state plans to introduce at trial and all evidence necessary for a defendant to prepare a defense.  Disclosure is required within thirty days unless the state moves for a protective order pursuant to Rule 5(d)(1).  Brady v. Maryland requires disclosure if the evidence is favorable to the accused.  Every county in South Carolina has Administrative Case Management Orders that establish procedures and timeframes for complying with Rule 5 and Brady v. Maryland.  Typically, disclosure is required at the initial appearance.

Prosecutors rely on two cases to avoid disclosing an informant’s identity.  The first is U.S. v. Ruiz, 536 U.S. 622 (2002).  Ruiz does not apply for at least two reasons.  First, the informant in Ruiz was not a participant in a hand-to-hand transaction.  Second, Ruiz involved a very narrow issue interpreting a procedural practice of the United States Attorney in California.

The second case prosecutors rely on to avoid disclosure of an informant’s identity is Hyman v. State, 397 S.C. 35, 723 S.E.2d 375 (2012).  A close reading of Hyman, however, demonstrates (1) “the identity of the informant had been disclosed to the defense,” (2) the videotape of the drug transaction was “available for inspection by defense counsel,” and (3) still photographs made from the videotape has been given to the defendant.  Prosecution reliance on Hyman, therefore, is misplaced.

Additionally, in  Chief Justice Toal’s Memorandum to All Solicitors dated March 1, 2004, she warned all Solicitors about “offering plea agreements to defendants on the condition they forego discovery.”  The Chief Justice warned, “This practice is going to have adverse consequences in the future with claims of ineffective assistance of counsel based on a claim that the plea was not voluntary because the applicant did not have access to the solicitor’s file.”  Relying on Rule 3.4 of the South Carolina Rules of Professional Conduct, the Chief Justice continued, “[I]t is unethical to premise a plea agreement on the defendant relinquishing the right to discovery in criminal cases.”  Rule 3.4 provides, “A lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully . . . conceal a document or other material having potential evidentiary value.”

Click these links to read Brady v. Maryland, State v. Hyman, Chief Justice Toal’s Memorandum to All Solicitors dated March 1, 2004, and Rule 3.4 of the South Carolina Rules of Professional Conduct. 

Editorial Note:  This post is the second in a two part series.  Click here to read Informants in Drug Cases Part One: “Mere Tipsters,” which was released on Wednesday, June 19, 2013.