A03097 Summary:

Add S60.77, CP L
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.
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A03097 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
  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.
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A03097 Text:

                STATE OF NEW YORK
                               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.

        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.
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