9.8Issues Involving Informants

A.Informant’s Identity

“‘Generally, the people are not required to disclose the identity of confidential informants.’ People v Cadle, 204 Mich App 646, 650 (1994), [mod on other grounds 209 Mich App 467 (1995) and] overruled in part on other grounds [by] People v Perry, 460 Mich 55 (1999).”¹ People v Henry (Randall) (After Remand), 305 Mich App 127, 156 (2014).² “However, when a defendant demonstrates a possible need for the informant’s testimony, a trial court should order the informant produced and conduct an in camera hearing to determine if the informant could offer any testimony beneficial to the defense.” Id., citing People v Underwood, 447 Mich 695, 705-706 (1994). “Whether a defendant has demonstrated a need for the testimony depends on the circumstances of the case and a court should consider ‘the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.’” Henry (Randall) (After Remand), 305 Mich App at 156, quoting Underwood, 447 Mich at 705.

1.Defendant’s Right to Confrontation

Both the United States Constitution and the Michigan Constitution afford a defendant the right of confrontation. US Const, Am VI; Const 1963, art 1, § 20. “The Confrontation Clause concerns out-of-court statements of witnesses, that is, persons who bear testimony against the defendant.” Henry (Randall) (After Remand), 305 Mich App at 153. “‘As a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness.’” Id., quoting Bullcoming v New Mexico, 564 US 647, 657 (2011).

The use of confidential informants can implicate a defendant’s right to confrontation. “‘A statement by a confidential informant to the authorities generally constitutes a testimonial statement. However, the Confrontation Clause does not bar the use of out-of-court testimonial statements for purposes other than establishing the truth of the matter asserted. Thus, a statement offered to show the effect of the out-of-court statement on the hearer does not violate the Confrontation Clause. Specifically, a statement offered to show why police officers acted as they did is not hearsay.’” Henry (Randall) (After Remand), 305 Mich App at 153-154, quoting People v Chambers, 277 Mich App 1, 10-11 (2007). Further, live testimony from the informant may not be sufficient to satisfy the defendant’s right to confrontation if the informant’s identity is concealed. People v Sammons, 191 Mich App 351, 359, 361-362 (1991) (holding that the defendant’s right to confrontation was violated at his entrapment hearing where cross-examination regarding identifying information was precluded and the informant testified while wearing a mask that concealed his identity).

2.Res Gestae Witnesses

Where the informant may have participated in the charged crime, the informant’s privilege will not protect him from production as a res gestae witness. People v Cadle, 204 Mich App 646, 650 (1994), mod on other grounds, 209 Mich App 467 (1995) and overruled in part on other grounds by People v Perry, 460 Mich 55 (1999).³ “The prosecution must use due diligence, that is, use all reasonable means, in helping defendants identify and locate res gestae witnesses.” Cadle, 204 Mich App at 650-651.⁴

3.Challenging the Validity of a Search Warrant

“[A] trial judge may exercise his discretion to require production of an informant who allegedly supplied police with information which led to the issuance of a search warrant where a defendant claims that the informant does not exist.” People v Poindexter, 90 Mich App 599, 608 (1979). The Court of Appeals set forth the procedure to be followed in resolving such claims:

“To begin with, there is a presumption of validity with respect to the affidavit supporting the search warrant and this presumption applies throughout the procedure.

To mandate an evidentiary hearing, defendant’s attack must be more than conclusory, if possible, and must be supported by more than a mere desire to determine who the informant was. There must be specific allegations of deliberate falsehood or of reckless disregard for the truth. Those allegations must be accompanied by an offer of proof and should be accompanied by a statement of supporting reasons. Also, the defendant should furnish reliable statements of witnesses to support his [or her] claim, or satisfactorily explain their absence. If these requirements are met to the trial court’s satisfaction and the statements challenged by the defendant are set aside but sufficient content still remains in the affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient to support a finding of probable cause, the defendant is entitled to an evidentiary hearing.

At the hearing, the trial judge should question the officer involved and consider any other relevant evidence offered by the prosecutor or the defendant. If the judge is convinced that the officer is being truthful regarding the existence of the informant, he [or she] should deny defendant’s request for production. However, if the judge determines that there is some doubt as to the officer’s credibility, he [or she] may require production of the informant.

Once a trial judge decides to order production of an informant, he [or she] should conduct a closed hearing to protect the informant’s identity. The trial judge is also free to take any other protective measures deemed necessary.

If the prosecutor believes the trial judge abused his [or her] discretion in ordering production of the informant, the prosecutor should seek immediate appellate review of the court order.” Poindexter, 90 Mich App at 609-610.

Where a defendant’s sole purpose in requesting production of the informant is to challenge the truth of the information supplied to the police, the informant need not be produced. People v Johnson (Jerry), 83 Mich App 1, 11 (1978) (noting that the defendant did not claim that the informant had exculpatory evidence and solely wanted to challenge the truth of the information used to obtain the search warrant).

B.Addict–Informant’s Testimony

Because the credibility of an addict-informer is a jury question, the jury may convict a defendant solely on the uncorroborated testimony of an addict-informer. People v Atkins, 397 Mich 163, 172 (1976). “‘[A]n instruction concerning special scrutiny of the testimony of addict-informants should be given upon request, where the testimony of the informant is the only evidence linking the defendant to the offense.’” People v Griffin, 235 Mich App 27, 40 (1999), quoting People v Smith (Phillip), 82 Mich App 132, 133-134 (1978). However, the trial court has no duty, in the absence of a defendant’s request, to give a cautionary instruction sua sponte. See MCL 768.29.

The mere fact that a witness was receiving physician-ordered medication when he gave a statement implicating the defendant did not entitle the defendant to an addict-informant jury instruction with respect to the witness’s trial testimony. People v Jackson (Andre), 292 Mich App 583, 601-602 (2011). Further, because the trial court’s general instructions regarding the evaluation of witnesses’ testimony were sufficient, defense counsel was not ineffective in failing to request an addict-informant instruction or a modified “medicated witness” instruction. Id. at 602.

M Crim JI 5.7 sets forth a jury instruction to be used by courts in connection with an addict-informant’s testimony.