Confidential Informant Agreement Defined
The Confidential Informant Agreement Form (sometimes called a buy-‐money agreement or buy and sell agreement) is used when law enforcement officers are trying to establish a confidential informant’s reliability (i.e., an informant who has provided accurate information in the past). It defines the relationship between law enforcement agents and their confidential informant in relation to the confidential informant’s role in a specific investigation. A confidential informant (sometimes called a "C.I.") is an important part of many law enforcement investigations as it helps to nail down the probable cause necessary for law enforcement to obtain search warrants, arrest warrants, and indictments – all of which require a heightened level of certainty.
Therefore , in order for the informant to be used as a tool in obtaining an indictment or conviction, his or her reliability must be proven through adequate records.
The Confidential Informant Agreement Form should contain the following information:
- the name and title of the officer who will supervise the informant;
- the purpose for providing the confidential information to the law enforcement report;
- the date of execution;
- an acknowledgement by the informant that he/she understands the responsibility of a confidential informant;
- the attorney who will represent the informant upon arrest or indictment (if such representation is required); and
- a waiver of any other rights the confidential informant may have from having voluntarily become a member of the group.
Agreement Form Elements
While the specific language of the confidential informant agreement may vary, the agreement form signed by confidential informants usually contains basic elements. The informal agreement form may vary or not be used, however, the elements that form the basic aspects of the informant relationship are important for both law enforcement and confidential informants.
These elements include:
Typed or Printed Name
A confidential informant’s name should be typed or printed on the form by investigators. Writing a name on the form by hand is not allowed to ensure the informant’s signature appears on the form.
Service Number
The confidential informant’s service number should be specifically assigned by the investigating agency. This is similar to an "H" number often used in the marginalia of police reports and is used as a cross reference for files being checked by the agency.
Home Address
The confidential informant form includes the informant’s home address. Leaving even a home address off the form can cause investigators to become suspicious of the intent of the informant. If there is no address available, a statement verifying the lack of an address may be supplied.
Personal Identification Information
The confidential informant will also provide personal identification information such as social security number, date of birth, height, weight, sex and physical description.
Drug and Alcohol Use
The confidential informant may be asked to list their prior or current drug and alcohol use. This information is protected by special regulations pertaining to the treatment of confidential informants and is used to assess the credibility of the informant.
Witness Public Records Search
A search is made of confidential informant public records for persons with the same name, address, date of birth, physical description. The search is used to determine if the confidential informant is actually the person identified in any criminal filing or record.
Release of Liability
The key element of the confidential informant agreement is the release of liability by the confidential informant. This disclaimer acknowledges that the confidential informant assumes the risk for the physical danger of their activities as an informant.
Acceptance – Confidentially Grievance Procedure
The confidential informant will agree to follow the law enforcement agency’s rules and procedures by signing the acceptance document. In some versions of the form, the confidential informant agrees to grievance procedures for violations of those rules and procedures.
Address for Mail
The confidential informant will provide an address for correspondence. Confidentiality will also be observed when sending mail to the informant.
Legal Ramifications for the Informant
When a person agrees to cooperate (whether verbally or in writing) with a law enforcement agency in providing information regarding the conduct of other persons, that person has agreed to become a "criminal informant." In some jurisdictions, unlike the Federal system, it is not a necessary formal precondition to entry into an Informant Agreement that the informant be a known criminal, or a prior criminal, just that information be provided. The entire relationship between the agency and the informant starts with that agreement. This exchange – the delineation of roles and responsibilities between the law enforcement agency and the informant – will be reflected in the "Informant Agreement Form" (or similar document) signed by the informant.
The following areas of the Agreement are important for both parties to consider before signing.
Is the informant required to testify? Failure to appear as a witness or to otherwise cooperate could result in criminal prosecution of the Informant. The Agency may be publically embarrassed if the informant reneges on the understanding and refuses to testify. The parties can alleviate this risk by spelling-out the legal obligation of the informant in the Agreement, and addressing the issue of what happens should the informant fail to testify.
In some circumstances, the Informant will provide the Agency with information about a particular illegal act, but will be absolutely unwilling to participate in the prosecution of that act. Unfortunately, these situations are not uncommon. The Agency should not agree to such arrangements. The Informant may have a strong motivation to remain anonymous and not personally exposed to any potential legal liability. However, if he/she provides false information to the authorities, he/she could be prosecuted without immunity, protection or assistance.
The Informant Agreement Form will typically include a provision recognizing that the Agency may share informant-generated information with a third party (ex you, or me). Although there are legitimate reasons for the disclosure of information, an Informant will want to know how that information will be used and published. There is a wide gap between law enforcement agencies and the news media.
An Informant may wish to disclose certain details of the informant’s communications with the agency, or other aspects of an informant’s cooperation, to another entity. For example, an informant may seek to share information with the news media. Specifically, the informant may hope to persuade the Agency to confirm its cooperation.
Attorneys who interact with cooperating witnesses must be cognizant of the particular legal obligations undertaken by the informant, particularly during the presentation of testimony and plea proceedings. The Agency has a strong interest in maintaining a close working relationship with the informant, so the Agency and its attorneys will want to utilize informant testimony appropriately and without risk of embarrassment. An informant will not testify without a clear understanding of, and agreement on, the scope of the testimony. The Agency may have a need to interview the informant before testimony is presented, and to rehearse the expected testimony.
Law Enforcement Rights and Responsibilities
The first group of individuals that must agree to the terms of the agreement form are members of the law enforcement agency. This group includes the agents both currently involved with the investigation (such as the arresting officer) and in the future (for instance, if a case agent receives any information and has access to the informant).
The agreement form states that members of the law enforcement agency must inform the informant immediately if the reliability of the agency or case agent changes, and that both the agency and the case agent must enforce the stipulations of the CI agreement form at all times.
The form also requires members of the law enforcement agency to prioritize the safety of the informant, provide him with food and lodging when necessary, and transport him when needed. In addition, the law enforcement agency must keep the informant and his information confidential and refrain from disclosing his identity or information to anyone other than the specific agents and officers named in the agreement.
Nonetheless, the agreement form lists several groups of people with whom the informant may be required to speak. These groups include jurors and court personnel, immigration officers, grand jurors, etc. Importantly, the law enforcement agents must discourage the informant from speaking to the press. The law enforcement agency cannot require this type of interaction. Importantly, if the informant is required by law to testify in a legal proceeding, he may be required to do so in such a case, but the law enforcement agency must inform him beforehand.
In the event that the law enforcement agency violates any terms of the CI agreement form, the informant can make an allegation against it, which representatives of the agency must comment on within a month. The categories of legal action that the informant can pursue against law enforcement include if it investigated another crime because of the CI agreement form, violated the CI agreement form, prepared false evidence, beat him, falsely imprisoned him, destroyed evidence, or failed to alert the appropriate authority regarding a request for a new trial.
If the law enforcement agency denies the accusation, it must do so within a month. Thereafter, the CI must pursue his charges directly through the law enforcement agency. If a committee exists to investigate these charges, the CI must file his charges with the committee. The charges may include a request to have false charges dropped, to perform an independent investigation, and to honor any promises made to him.
Contract Terms for Confidentiality
Confidential informant agreement forms customarily contain language referring to the intention of the parties to preserve the confidential nature of any information provided by the informant. For example, the form shall be construed only for purposes of the administration of the informant fund. The courts have adopted this provision through rules of court and related guidelines.
Often, this provision is drafted to specifically reference that neither the informant nor the law enforcement agency (or governmental entity) may be required to divulge the informant’s true identity in any future legal proceedings without the consent of the informant. Even when it is feared that a criminal defendant may attempt to seek the confidential informant agreement, the common language of these forms does not permit a judge to require disclosure of the confidential informant’s true identity in the absence of the informant’s consent .
The law enforcement agency which is investigating the crime to be reported by the informant will normally conduct an initial intake interview with the confidential informant. The informant’s identity will be disclosed to no one except law enforcement personnel. The confidential informant may be asked to submit to a full field interview with the law enforcement personnel. The interview may include a background check, to determine if the informant has any prior criminal history. The confidential informant may receive a payment for expenses and will normally receive a small upfront non-refundable payment because he or she is exposing themselves to risk by reporting criminal activity to law enforcement. Any further payments will be made by the law enforcement agency once the information has been confirmed, and/or the criminal activities are verified.
Breaching the Agreement
When either party breaks the terms of the agreement, or fails to perform their respective duties and obligations to the other, the consequences may range from administrative sanctions and civil penalties, to criminal prosecution. A primary analytical concern in a breach of agreement claim is whether there was a breach, what the damages from the breach are, and what claims may be brought. In regards to criminal prosecution, violations of the form itself have been prosecuted under several federal statutes such as fraud, bribery, obstruction of justice and importantly, civil rights. Convictions are rare. State prosecutions under criminal statutes and regulations governing informants are similarly rare. Several cases have addressed the federal government’s use of informants that perpetrate fraud against an innocent third party. As for civil remedies, the right to compensation, or even to a new trial in cases where the defendant was found guilty of a federal crime, may depend on whether the informer’s deception was substantial enough to call the jury’s ability to separate actual evidence from a fabricated account into question.
Practical Application and Examples
The lower courts have addressed the issue of the admissibility at trial of testimony by a confidential informant where that witness failed to sign the agreement form. See United States v. Coats, 674 F.2d 550, 553 (10th Cir. 1982) (court held that agreement form is not a condition precedent to admissibility although better practice for prosecutor to obtain signatures); United States v. Rodriguez, 711 F.2d 648 (11th Cir. 1983) (court said that signature requirement by informant is to "facilitate the collection of taxes" and not a "jurisdictional requirement"); United States v. Alvarado-Tizcareño, 307 F.3d 410 (5th Cir. 2002) (government agent’s testimony about interview with informant was admissible evidence even though informant "did not personally sign" a required form).
One line of cases demonstrates that governments may be able to proceed in the absence of a signed agreement from the informant provided the government has made a good faith effort to ascertain the signature. See Gonzalez v. Johnson, 308 F.3d 1206, 1210 (10th Cir. 2002) (court addressed exculpatory evidence wanting in "case in which the government made no effort to obtain one or both signatures , but could have done so; a case in which the statements of the informer were so egregious that they could not have been used consistently with due process; or the rare case in which the absence of the signature created a reasonable doubt as to the defendant’s guilt").
Other aspects of criminal law that require written agreements also have been acknowledged by some courts. Courts have generally agreed that signing agreements concerning cooperation deals in exchange for reduced charges or other considerations are "merely procedural."
The decision in United States v. Sanchez, 818 F.2d 755 (11th Cir. 1987) is instructive on this point. The Appellate Court said that: Although it would have been better practice to require that informants sign this form, the failure to do so was not error. It was certainly not egregious error amounting to a denial of a fair trial. The signature is used solely for administrative purposes, and is of no probative value.
The Eleventh Circuit previously ruled in United States v. Rodriguez, 848 F.2d 612 (11th Cir. 1988) that the lack of a written agreement does not preclude an informant from be a government witnesses. In Rodriguez, the court found that the informant was in many respects a host of the investigation. The informant amassed most of the important information and found several new informants. While noting the importance of written agreements, the court concluded that the informant could still testify consistent with due process.