Regulates the use of informants by the prosecuting attorney and law enforcement personnel; requires law enforcement personnel to submit an annual report to the department of state with statistical information relating to their use of informants.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A3097
SPONSOR: Lentol TITLE OF BILL: An act to amend the criminal procedure law, in
relation to the regulation of the use of informants
PURPOSE OR GENERAL IDEA OF BILL:
To introduce more transparency, uniformity and formality into law
enforcement's use of informants. To protect society from the troubling
side effects of this largely unregulated practice
SUMMARY OF SPECIFIC PROVISIONS:
Compiles annual statistics about law enforcement use of informants to
assist with judicial and legislative oversight. Provides defendants and
their attorneys with vital information about informants offering testi-
mony against them through full disclosure, reliability hearings and
depositions. Places limits on who can be turned into an informant.
JUSTIFICATION:
This bill is designed to provide guidelines, and to allow for more
legislative, judicial and public scrutiny over the practice of using
informants to solve crimes to ensure that it is truly benefiting society
and creating safer neighborhoods for New Yorkers. It also attempts to
provide for more continuity in the circumstances surrounding the
creation and maintenance of informants. The bill does not intend to
eliminate the practice, rather it seeks to set standards and achieve
greater oversight of the entire process.
Informants provide information to government officials, police, prosecu-
tors, etc exchange for some sort of government benefit. It is a very
common and pervasive practice in today's law enforcement, that largely
goes unchecked, unregulated and without scrutiny.
Most often, informant use is particularly referring to someone who
provides information about another person's criminal behavior in
exchange for a government conferred benefit, such as avoidance of prose-
cution or arrest, a reduction of charges, privileges while in prison
etc. Informing can be an enormous labor and time saving device for both
police and prosecutors that can be essential for prosecution of certain
types of cases.
However, legislative, judicial and public entities rarely have the
opportunity to review these negotiations. Informant agreements do not
require judicial approval to make sure they are in society's best inter-
est, as plea agreements do. Instead, the practice relies almost
completely on police and prosecutorial discretion. The use of informants
also creates a system in which defendants are often convicted largely on
the testimony of what is essentially a 'paid' informant. This testimony
can be very difficult to contradict and extremely persuasive to a jury.
There are no official statistics or numbers relating to how often infor-
mants are used, where, or what crimes are being traded for what informa-
tion, or what kind of convictions result.
Moreover, there is absolutely no uniformity in informant practices. The
situation and the arrangements vary greatly. Police routinely overlook
past, present and continuing crimes such as drug abuse and dealing, or
worse because they do not want to lose their informant.
The question then arises, does this result in a net gain or loss for the
community? Potentially, the informant system is contributing to crime,
in addition to fighting it. Moreover, it is fairly well known that
informants are sometimes selective in who they 'rat out,' basing it on
their own convenience rather than an individual's threat to society.
Despite the apparent advantages to the informant, they also incur seri-
ous risks. The informant is deprived of many of the protections and
rights that our constitution was designed to include. When someone
agrees to be an informant in order to avoid an arrest, they are essen-
tially admitting guilt, often without the benefit of defense counsel,
Miranda warning, or written agreement. These agreements can last years
and offer no guarantee against eventual arrest. During this time, the
informant is constantly in peril. Frequently, those who are discovered
by their peers, to be informants face dire consequences.
The management of informants needs to be made more uniform and formal in
order to protect everyone involved.
In conclusion, the practice of using informants can be detrimental to
the community as a whole. The fact that informants can commit certain
crimes with police permission gives the impression that criminality and
morality are relative. It promotes disloyalty and heightens mistrust and
anger between law enforcement and communities and within the communities
themselves.
PRIOR LEGISLATIVE HISTORY:
A.10096 of 2006
A1124 of 2007-2008
A.3712 of 2009-2010
A.437 of 2011-12
FISCAL IMPLICATIONS:
None to the State
EFFECTIVE DATE:
September first next succeeding the date on which it shall have become a
law.
STATE OF NEW YORK
________________________________________________________________________
3097
2013-2014 Regular Sessions
IN ASSEMBLY
January 23, 2013
___________
Introduced by M. of A. LENTOL -- read once and referred to the Committee
on Codes
AN ACT to amend the criminal procedure law, in relation to the regu-
lation of the use of informants
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The criminal procedure law is amended by adding a new
2 section 60.77 to read as follows:
3 § 60.77 Rules of evidence; use of confidential informants.
4 1. Whenever a prosecuting attorney plans to use an informant to testi-
5 fy against a defendant, the attorney for such defendant shall be
6 supplied with:
7 a. the complete criminal record of the informant;
8 b. any testimony or information the informant has provided or has
9 promised to provide for any legal action;
10 c. all statements made by the informant about the specific legal
11 action in question; and
12 d. all promises, compromises, or protections offered by the prosecut-
13 ing attorney to the informant in exchange for his or her testimony. This
14 shall also include any information about crimes committed by the infor-
15 mant for which charges will not be brought in exchange for his or her
16 testimony.
17 2. The attorney for the defendant shall be given the opportunity to
18 depose the informant prior to entering into any plea negotiations or
19 going to trial.
20 3. Upon the request of the attorney for the defendant, the judge shall
21 grant a reliability hearing, which shall be used to determine the credi-
22 bility of the informant's testimony. Both the prosecution and the attor-
23 ney for the defendant shall be entitled to offer evidence relating to
24 the informant's reliability. The judge, in his or her own discretion,
25 shall weigh the evidence and determine if the informant is a reliable
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01825-01-3
A. 3097 2
1 witness. If the informant is found to be unreliable, he or she shall be
2 prohibited from testifying against the defendant.
3 4. Notwithstanding any other provision of law relating to the plea
4 bargains, no prosecuting attorney shall offer a dismissal of or refuse
5 to bring charges for the crimes of murder, manslaughter, rape, or
6 kidnapping in exchange for the testimony of a person.
7 5. If a person has committed a crime that, if convicted, would result
8 in a conviction of a class A misdemeanor or any class of felony, law
9 enforcement officers or the prosecuting attorney must receive judicial
10 consent before using such charge as a plea offer in exchange for the
11 testimony of the person.
12 6. Commencing January first in the year following the effective date
13 of this section, and every January first thereafter, all law enforcement
14 personnel who use informants shall file a report with the department of
15 state. The report shall be available to public inspection and may be
16 made available on the department of state website or in other electronic
17 formats. The report shall include:
18 a. the exact number of informants created and sustained by each
19 department or office;
20 b. the number of occurrences when a suspect becomes an informant with-
21 out ever being officially charged with a crime;
22 c. the number of occurrences when a suspect has charges dropped after
23 agreeing to become an informant;
24 d. the specific offenses that have been dropped as the result of an
25 individual becoming an informant;
26 e. the number of arrests that are the direct or indirect result of the
27 use of an informant and the role played by the informant for each such
28 arrest;
29 f. the number of convictions that are the direct or indirect result of
30 the use of an informant and the role played by the informant for each
31 such conviction; and
32 g. the age, race, gender, and neighborhood of residence of each infor-
33 mant.
34 § 2. This act shall take effect on the first of September next
35 succeeding the date on which it shall have become a law.
