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NJ Confidential Informant Identity Update


by in Criminal Defense

State v. Craig E. Young, unpublished opinion, App. Div. Docket No. A-0004-08T4 (May 4, 2010) – Conviction reversed for multiple evidentiary errors, primarily concerning the identity of the confidential informant that provided the original tip. “The identity of the confidential informant was not disclosed by the State prior to trial, and defense counsel did not move for disclosure, believing that he lacked grounds for doing so. However, during the prosecutor’s opening, the prosecutor made statements that established that the confidential informant was R.B….

The present case is unusual, in that the State volunteered the name of the confidential informant at trial, thereby suggesting that it no longer sought to protect a continuous flow of information from R.B…. If, as it appears, the State did not seek to protect R.B.’s identity as an informant, then it is difficult to justify its failure to name R.B. as its confidential informant when provided with his exculpatory statement by defense counsel in discovery. For in that circumstance, Roviaro’s balance of ‘the public interest in protecting the flow of information against the individual’s right to prepare his defense,’ [citation omitted], would have tipped, decidedly, in defendant’s favor. Indeed, the State’s silence at that time was contrary to ‘the need for a truthful verdict’ [citation omitted] and increased the risk of false testimony at trial….

Indeed, the State’s timing of its disclosure appears to have been purposefully calculated to result in a proceeding that was fundamentally unfair to the defendant. In these circumstances, either a mistrial or a substantial continuance was warranted.”

“Defendant argues next that his constitutional right to confrontation was violated when police witnesses were permitted to recount out-of-court statements of confidential informant R.B. that incriminated defendant…. On cross-examination, Detective McLaughlin disclosed that he had asked the informant what he thought McLaughlin would be able to purchase, and the informant ‘indicated that it could be an eight ball.’… [O]n the direct examination of Detective Paul Skill, the prosecutor elicited testimony that: ‘We received information from a confidential informant that stated that a person would be coming to a location to sell drugs;’ ‘the location for the sale was 3124 U.S. Route 9 in the Rio Grande section of Middle Township;’ and the drugs would be sold from ‘Apartment number 9.’ Further, Skill described the plan: ‘Detective McLaughlin was going to go up to the apartment, meet with the confidential informant and wait for the person to arrive so that he could purchase narcotics, an eight ball of cocaine.’… Our review of the record in the present matter satisfies us that a reasonable possibility exists “that the evidence complained of might have contributed to the conviction.” [Citations omitted]. We reject any claim that the admission of the hearsay testimony constituted harmless error. A new trial is thus warranted.”

“In the present matter, defendant admitted to a history of prior drug sales, while claiming that he had ceased distribution in June 2006, eight months before the transaction at issue and almost two years prior to trial. Arguably, defendant’s position opened the door to cross-examination as to whether he had, in fact, reformed and to introduction of impeaching evidence of drug sales occurring after June 2006, even though such evidence consisted of prior bad acts, ordinarily precluded by Rule 404(b).

However, that was not the focus of the State’s inquiry. The State offered no admissible proof, other than the evidence surrounding the sale on February 21, 2007, to contradict defendant position that he had ceased his illegal conduct. Its extended cross-examination focused instead solely upon the specifics of defendant’s prior illegal drug sales, occurring under circumstances that differed significantly from the sale for which defendant was now being prosecuted. The testimony elicited by the State thus bore no relevance to defendant’s guilt….

But here, there was no N.J.R.E. 104 hearing, no evaluation of the proposed testimony in light of Cofield occurred, no proffer was made by the State as to the basis for the admissibility of the evidence of prior crimes pursuant to N.J.R.E. 404(b), and no limiting instruction was given to the jury with respect to its consideration of that evidence. We find these defects also to be sufficient to warrant a new trial.”






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