confidential informant

One of law enforcement’s most utilized tool of investigation are confidential informants or cooperating defendants. They provide the FBI, DEA and local law police with a lot of information. Some of that information is reliable and often, its not.

The way that law enforcement gains this cooperation is through the threat of long jail sentences and the promise of leniency. People, especially those who have prior criminal convictions, will do anything to avoid a lengthy prison sentence. Therefore, the FBI, DEA and Homeland Security have a powerful law enforcement investigative tool and they use it as often as they can.

Informants have a motive to lie

One problem with law enforcement use of cooperating defendants or informants is that these people have a motive to lie and they often do. Informants will promise things to the police that they cannot deliver to gain their favor. They will also go to any extent possible to set someone up, even if that someone was originally not interested. The second problem is that these informants are now operating as agents for the police and therefore are entrusted not to violate a person’s rights. Informants typically do not care about violating another’s constitutional rights. They only care about saving themselves. As a result, otherwise law abiding persons are unlawfully entrapped into committing a crime.

Entrapment is a legal defense to federal criminal charges when the police act in a manner that is unlawful or their behavior steps over the line. Police are responsible for their informants as well. Therefore, when a cooperating defendant and confidential informant breaks the law, the police are responsible and an entrapment defense can be used.

Entrapment requires two things

  1. A defendant that was not predisposed to the unlawful conduct
  2. Abusive or coercive police or informant behavior.

In other words, law enforcement had an intolerable degree of participation in the criminal enterprise. For instance, when a person who does not have a history and is not known of dealing drugs is coerced by a cooperating informant, this coercion is unlawful and can be a defense to a charge of delivery of a controlled substance, conspiracy to deliver or possession with intent to deliver. Remember an informant who wants to avoid a long prison sentence, or even a short one, will do anything including talk someone into selling them drugs who otherwise would not be doing it. The cooperating informant and the police have unlawfully entrapped the seller.

Did officials lead with the belief of criminal design?

The central inquiry in entrapment cases is whether law enforcement officials implanted a criminal design in the mind of an otherwise law-abiding citizen. Absence of pre-disposition is necessary to establish and several things must be taken into account by a judge or jury. When a defendant raises the defense of entrapment, the prosecution has the burden of proving the defendant was not entrapped beyond a reasonable doubt. The government must prove the defendant was pre-disposed to the particular criminal behavior they are accused of doing. The court or jury must look at several factors regarding disposition. The character or reputation of the defendant, including any prior criminal record; whether the suggestion of the criminal activity was initially made by the Government; whether the defendant was engaged in criminal activity for profit; whether the defendant evidenced reluctance to commit the offense, overcome only by repeated Government inducements or persuasion; and the nature of the inducement or persuasion supplied by the Government.

If the facts of the law enforcement conduct are not in dispute the court can dismiss the case as a matter of law if it finds abusive law enforcement practices and no defendant pre-disposition. Because informants will generally never admit to wrong doing, the entrapment defense must be presented to a jury and the government must prove the defendant was not entrapped beyond a reasonable doubt. That means that if there is doubt whether the defendant was entrapped and that doubt is reasonable under the circumstances, the Defendant is entitled to a verdict of not guilty.

Confidential informants can engage in entrapment with an increased amount of drugs

Confidential informants along with police can also engage in entrapment when coercing a person to involve themselves into engaging in an increased amount of drugs that they would not have otherwise done in order to increase the sentence. For instance, if defendant was usually dealing in small amounts of drugs like up to 100 grams of a controlled substance but the informant repeatedly insists upon quantities over 100 grams. The more weight involved, the higher penalty. This is a form of sentencing entrapment and that is equally unlawful against a person who was not otherwise pre-disposed.

If there is an absence of a criminal record and pre-disposition, an entrapment defense should be considered in every case where law enforcement utilizes a confidential or cooperating informant.

They can never be trusted, especially in a drug case.