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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 26442
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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can someone be forced to be a confidential informant on a federal

Customer Question

can someone be forced to be a confidential informant on a federal case without first signing an agreement
Submitted: 6 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 6 years ago.
Hello Jacustomer,

You can never be forced to be a confidential informant on a Federal or any other type of case. If you are facing potential or actual Federal criminal charges, you should only dealing with the authorities through your lawyer.
Customer: replied 6 years ago.
this was not a case of facing charges. this was voluntarily being an informant however the federal government did not fill out all of the proper paperwork in advance, there have been arrests of the people who were being taped and now the threat of releasing my identity has come out along with an offer of witness protection. since the fbi did not follow their own guidelines regarding the use of informantsinitially , can they still release my identity to the defense?
Expert:  Zoey_ JD replied 6 years ago.

This dilemma is one reason that a potential suspect should never make a voluntary agreement with law enforcement but wait to have a prosecutor and a lawyer negotiate a cooperation agreement that protects your rights. That way, you would have at least understood in advance the possibilty that you could be in this situation down the road and could have decided instead not to get involved.

As a general rule, if you will be needed to take the stand in order to convict these people, your identity must be disclosed. Even if you are not going to testify, however, there are circumstances where the defense would be entitled to know your identity. And the defense will almost certainly be filing such motions asking for disclosure. A judge will rule on this issue after the hearing. He will look at all fo the facts and circumstances of the particular case and whether or not your testimony would be essential, relevant and helpful for the fair determination of his case. See Roviaro v. United States, 353 U.S. 53, 60 (1957) for the lead US Supreme Court decision.

It is time to consult with a criminal lawyer with Federal experience. He can at least keep you informed and protect your rights.
Customer: replied 6 years ago.

i would not have had an opportunity to speak with a prosecutor becasue i was not facing any charges whatsoever regarding the this whole case. i was basically a citizen in this situation, not an accused criminal and there were never going to be any charges against me for any reason.

the cooperation was not part of any type of deal as there were not going to ever be any charges.


i need to know if i can legally stop the fbi from releasing my identity to the defense since they did not follow the proper procedures regarding the informant signing anything

Expert:  Zoey_ JD replied 6 years ago.

I have already covered this. If the information that you provided led to arrests and a criminal prosecution, the defense attorneys will file a motion seeking your identity. That much is pretty pro forma. From there it depends on the facts and circumstances of the case on which you have cooperated. The defense would be granted a hearing to determine whether disclosing your identity would be essential if the defendants are to have a fair trial.

The government has an interest in protecting their CIs and they will reply to any such motion arguing whatever they have that's relevant in order to convince the court that your identity ought to be privileged. They are not going to give you up without fighting for it. That's the good news. The bad is that it will all be up to the judge after the hearing.

I cannot tell how it will come out, as determinations in this area get made on a case-by case basis, depending on the specifics of the facts and circumstances of the underlying case. In general. however,most of these motions to disclose do not get granted if the CI is not going to testify at trial. That privilege can fall if a defendant's as an rights to Due Process requires it, as I indicated before.

If the judge determines that the defendant is entitled to know your identity, then the government will be ordered to turn it over. Period. At that point, your interest and the FBIs will not be the same, and you will need a lawyer.

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