When Do Criminal Defendants Have the Right to Know the Identity of a Confidential Informant in Massachusetts?

Massachusetts law enforcement officers and agencies rely heavily on tips and testimony offered by confidential informants (CIs) when investigating and charging alleged criminal activity. Police often acquire CIs from the community in which they are investigating crimes. CIs who have previously been involved in criminal conduct are often offered incentives by prosecutors and law enforcement to encourage them to cooperate against their former compatriots. Because CIs are often involved in several investigations and are essentially working “undercover” in the criminal community while they are assisting law enforcement, the identities of active and inactive CIs are kept closely guarded by law enforcement agencies and prosecutors. The Massachusetts Supreme Judicial Court recently ruled that prosecutors do not need to disclose the identity of a confidential informant, even after a defendant argued that the identity may assist in mounting a defense against charged crimes.

The defendant in the recently decided case was stopped and arrested on suspicion of selling cocaine after a confidential informant notified police that the defendant was selling drugs on a Springfield street corner. Based on the informant’s tip, surveilling police officers witnessed the defendant performing apparent drug transactions and ultimately stopped him based upon a traffic violation after he entered the vehicle to leave the street corner. Before trial, the defendant requested the identity and other information about the confidential informant who allegedly told the police about his criminal activity. The trial judge granted the defendant’s motion, ruling that the information would assist the defendant in defending against the charges.

The prosecution immediately appealed the ruling to a higher court, and it was put on hold pending appellate review. On appeal, the Massachusetts High Judicial Court ruled that state law requires a trial judge to apply a two-step formula in deciding whether to unmask the identity of a confidential informant. After finding that the prosecution has properly invoked the informant privilege, a court must balance the competing factors of the defendant’s right to mount a defense with the state’s interest in protecting the functionality and physical safety of the CI. Because the trial court in the recent case did not appear to perform the two-step analysis, the high court reversed the trial judge’s ruling. Furthermore, the high court found that under the two-step analysis, the defendant would not be entitled to know the identity of the CI. As a result of the appellate ruling, the case against the defendant will proceed with the CIs identity undisclosed.

Are You Facing a Massachusetts Drug Crime?

If you are facing drug charges in Massachusetts, the prosecution may attempt to offer dubious testimony of unnamed individuals as evidence against you. CIs are known to say exactly what the government wants them to help the case, and without the proper tools to attack the credibility of a CI, many defendants are unable to truly fight the charges against them. The Massachusetts criminal defense attorneys at the Law Office of Patrick J. Murphy know how to discredit and attack the use and testimony of confidential informants. We understand the factors that state courts apply when evaluating CI testimony. With our help, you will be confident that inadmissible and inaccurate testimony won’t be wrongly allowed in any case against you. Our firm represents clients facing all Massachusetts misdemeanors and felonies, including crimes. Contact our office at 617-367-0450 to schedule a free and confidential consultation with one of our lawyers.


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