textfiles/law/criminal.law

December 1990                                                     

                                                                  
                        CRIMINAL INFORMANTS:  
                AN ADMISTRATOR'S DREAM OR NIGHTMARE?        

                                 By 

                         Harry A. Mount, Jr.                              
                           Special Agent
               FBI's Newark, New Jersey, Field Office                     
              
                                                    
     Informants expose crimes that otherwise may go undetected.  
When properly used and controlled, they provide information that 
improves police efficiency, assists in the apprehension and 
prosecution of criminals, and sometimes even prevents crimes from 
taking place.                                                     

     However, to use informants effectively, agencies must
establish and maintain strict, written departmental policies on
handling informants.  Even when operating under tight controls,
informants can go bad quickly.  When they do, they create
significant legal and public relations problems.

     Law enforcement agencies that intend to use informants
extensively must also be willing to defend publicly this
decision.  Fortunately, this is not difficult because the use of
informants to solve or prevent crime is on solid legal ground.
Judge Learned Hand, one of America's most famous jurists,
observed:

     "Courts have countenanced the use of informants from time
   immemorial; in cases of conspiracy, or in other cases when
   the crime consists of preparing for another crime, it is
   usually necessary to rely on them or upon accomplices because
   the criminals will almost certainly proceed covertly." (1)

     As early as 1650, British Chief Justice Hale encouraged 
criminals to cooperate with the law by rewarding them for giving 
evidence against their accomplices.  Hale established an 
arrangement that he called a "Plea of Approvement," which 
offered arrested criminals immunity from prosecution, or at least 
a reduced sentence, if they provided information on crimes that 
they knew about. (2)                                                 

     More than 300 years later, law enforcement's use of 
informants is accepted by Americans, who have become familiar
with the practice.  The media constantly run stories about sting
operations, protected witnesses, and paid sources.  They know
that the mystery associated with these individuals ensures
audience interest and widespread attention.

     In fact, Americans are sensitized to informant use by the
entertainment media. Covert meeting sites, the danger, and the
air of anonymity portrayed on television and in movies all add
an element of suspense that engenders public understanding and
acceptance of informant use by both fictional and real
detectives.

JUSTIFYING AN INFORMANT PROGRAM                                   

     Yet, how does a law enforcement agency justify paying for 
information?  Don't taxpayers already pay for police protection?  

     Legislators and ordinary citizens frequently pose these 
questions, and there is but one answer.  Simply stated, using
informants is cost-effective.  Informants provide intelligence,
insight, and information that lead to arrests and convictions.
Informants allow a law enforcement agency to expend its
personnel on activities that have a high likelihood of success.

     For example, because of information provided by informants, 
arrest teams can determine where suspects can be found, how 
heavily armed they are, and who they are with.  Some informants 
help investigators to obtain evidence of criminal wrongdoing,  
or through the use of informants, investigators can record 
actual criminal conspiracies on tape through court-ordered 
electronic surveillance.                                          

     Good informants keep people from being harmed, evidence
from being destroyed, and potentially explosive and dangerous
crimes from taking place.  As an important byproduct, proactive
investigations often increase the efficiency and morale of sworn
investigative personnel.

ESTABLISHING AN INFORMANT PROGRAM                                 

     A law enforcement agency that wants to have an effective, 
controlled informant program must encourage its sworn personnel 
to develop and maintain a professional attitude toward 
informants.  One of the first steps that an agency must take in 
establishing a professional informant program is to convince its 
investigators that informants are not of questionable character, 
unworthy of respect.  In reality, many informants who provide 
assistance to law enforcement are not criminals.  Many hold 
responsible positions in public agencies and private businesses. 
Many are citizens motivated by personal antipathy to criminal 
conduct that they see around them.  A few cooperate because they 
enjoy the cops-and-robbers excitement that goes along with 
solving crimes.  Some are seeking revenge for professional or 
personal affronts, while others just trade information for money.  

     Citizens have an obligation to report crime.  However, no 
officer seriously expects citizens to live up to that obligation
on a routine basis. (3)  Fear of being killed, embarrassed,
badgered, losing time from work, or of being inconvenienced work
against citizens volunteering information about a crime.
Therefore, law enforcement agencies must use informants to take
the place of ordinary citizens who refuse to get involved.

     In fiction, as in real life, investigators often refer to 
informants in less than polite terms.  Officers must understand 
that the attitude behind such terminology stands in the way of a 
healthy relationship between an investigator and a source.  These 
personal feelings alienate people who could provide positive 
information that would solve crimes.  Use of derogatory terms 
even turns off the "professional" paid informant.  
Consequently, departments should consciously discourage the 
practice of using derogatory terms, both on and off the job.      

     A professional attitude toward informants does not just 
evolve.  Law enforcement officers must be trained to cultivate a
nonjudgmental frame of mind.  Agencies must design both basic
and advanced schooling that helps each officer to overcome the
simple, but deeply ingrained, prejudice that is associated with
informing.

     There is no doubt that Americans believe that telling tales 
on others is wrong.  From childhood, they are taught not to 
tattle on brothers and sisters, classmates, or friends.  Parents, 
teachers and clergymen constantly reenforce the concept.  Even 
some law enforcement professionals believe that it is wrong to 
"tell on" another person, although they realize they need the 
information provided by informants to develop cases and
apprehend criminals.  Frequently, they even admire those who
refuse to talk.

     Consequently, when law enforcement personnel work to
develop informants, they are going against ingrained habits.
The only way around the conflict is to train personnel, formally
and informally, to view the use of informants as a critically
important law enforcement technique.

     Once investigators overcome their reluctance to nurture
this kind of confidential alliance, they find that developing
informants is not too difficult and soon realize that using
informants means controlling informants.  However, the alert
agency must recognize that administrative controls are necessary
to run an effective informant program.

ADMINISTRATIVE PROCEDURES                                         

     Law enforcement administrators must establish and maintain
several areas of strict control.  Generally, they must:

     1) Protect an informant's identity                           

     2) Ensure information is recorded in files                   

     3) Disseminate information to appropriate personnel, while 
        simultaneously guarding the information from general
        perusal 

     4) Involve mid-level managers as overseers of informant
        operations 

     5) Employ alternate informant handlers 

     6) Develop a payment system that calls for accurate
        accounting of all monies paid  to informants.  

Protect the Informant's Identity

     Only those with a need to know should be advised of an
informant's identity.  In practical terms, this means
investigators and their alternates who work closely with the
source.  The squad supervisor or first-line manager should be
encouraged to meet the informant so that the source knows that
there are people in authority who support the program and so
that the manager has a general "feel" for the informant.  The
person who controls the informant file room must also know the
identity of an informant in order to handle the filing and
other paperwork.  These employees should be the only people who
routinely handle informant information and who need to know the
informant's identity.

     To ensure secrecy, informants should have code numbers and
code names assigned to them.  These take the place of the
source's real name on all documents and reports, and also in
personal conversations.  Any information provided by the source
must be documented and recorded using code numbers and code
names.

     The files created must be maintained in secure rooms and
access to them must be strictly controlled by an employee
specifically assigned to control access.  Only the informant's
handler or alternate handler and the immediate supervisor should
be allowed to examine those files routinely.  Top management
should have access to them, but only when necessary.  A daily
record that lists everyone who enters the secure file room
should also be maintained.  This control is not implemented to
create a bureaucratic roadblock, but to protect sources by
limiting the number of people who know their identities.
Institutionally, it also reenforces the importance of protecting
informants' identities.

Record Information                                                

     Ultimately, the intent of every investigation is
prosecution, which requires maintaining records and files.
Information may be the informant's stock-in-trade, but that is
only the starting point for law enforcement officers.  Paperwork
allows prosecutors to obtain warrants or to put together cases
that will be tried in court.

     Refusing to identify sources except by their code names
frequently causes resentment, both inside and outside the
department.  Regardless, unless sources are scheduled to testify
in open court, there is no reason for anyone to know informant
identities. (4)  Agencies should try to establish how reliable
its sources are, while at the same time legally resisting any
exposure of the their identities.

Disseminate Information                                           

     Dissemination is the key to making informant operations 
successful.  Files full of facts are worthless unless someone 
uses them to focus an investigation on specific people, obtain 
search and arrest warrants, or support an affidavit for 
electronic surveillance.  Informant handlers must be taught to 
believe that information without action is worthless.  Too often, 
informant handlers believe that they have done their jobs by 
developing knowledgeable sources who keep them individually 
abreast of the latest inside criminal information.  
Unfortunately, handlers may become afraid of revealing their 
sources, and so, they keep the information to themselves.         
Computers with megabytes of criminal data sit in many squad 
rooms.  However, these computer systems are equally useless
unless someone takes the information and uses it, drawing the
equations that link person to person, incident to incident, and
crime to crime.  Facts must be shared and opinions solicited.
Only then does an informant program pay off.

     Therefore, the agency that uses informants productively
develops standard report forms and disseminates information to
those authorized to use it.  Specific paperwork and
dissemination procedures must be adopted, and officers must
understand that information cannot be shared outside standard
channels.  The department must depend on the code names of the
sources to shield informant identities from the casual or
uninitiated reader.  A good informant handler uses judgment and
discretion to disseminate only those facts that will advance an
investigation without identifying the source.

Involve Mid-Level Managers                                        

     Each department or agency should have mid-level managers
directly overseeing informant operations.  This is necessary
because all too often, a close, symbiotic relationship develops
between an informant and informant handler.  This type of
relationship leads to a corresponding loss of objectivity on the
part of the informant handler.  A mid-level manager who has no
immediate personal stake in the operation can step in to enforce
departmental procedures impartially, when necessary.

Employ Alternate Informant Handlers                               

     To assist in maintaining objectivity, each department or
agency also should assign two investigators to each informant.
One is the primary informant handler, while the second acts as
an alternate.  The alternate handler should witness every
payment for services and expenses, attend most debriefing
sessions, and contact the source any time the primary contact is
unavailable.

     Often, there is resistance to this policy because 
investigators object to another person being involved.  Many 
believe the alternate causes friction and depersonalizes the 
affiliation.  However, the alternate can both sympathize with the 
informant and remain objective and slightly detached.  This 
relationship helps to maintain a balance and perspective that 
fosters control.                                                  

Develop Strict Payment Procedures                                 

     In the past, investigators paid informants nominal amounts 
of money.  This is no longer the case.  Many  police  agencies  
disburse substantial amounts of money to sources, and 
consequently, expect to be able to direct their activities.  This 
requires accountability.  Payments must be witnessed, receipts 
obtained, and cumulative records maintained.                      

     Generally, informants should be paid on a C.O.D. basis, not 
on a regular schedule. Also, only when informants provide 
valuable information should they be paid.  There should be no 
standard pay scale for information.  The informant handler must 
consider the value of each item and then recommend a specific
payment.

     Many factors affect the amount of a payment.  What kind of
information is provided?  Is the source placed in any real
danger? What is the status of the case?  How long has the source
provided information?  How reliable is the source?  Normally,
the informant's handler should suggest an appropriate payment
and an immediate supervisor should authorize it.

CONCLUSION                                                        

     Working informants is fulfilling.  Investigators who use
informants effectively can be reasonably sure that they are
going to develop cases against key criminals.  Having someone
report on the daily successes and frustrations of criminals
helps investigators to gather and maintain evidence that leads
to apprehensions and prosecutions.

     U.S. District Court Judge Stephen Trott once addressed U.S. 
Government prosecutors on using informants to try cases.  In a 
supplement to that lecture, he noted, "Notwithstanding all the 
problems that accompany using criminals as witnesses...the fact 
of the matter is that police and prosecutors cannot do without 
them  period."                                             


FOOTNOTES
                                                       
     (1) United States v. Dennis, 183 F.2d 201 (2d Cir. 1950).       

     (2) E. Cherry and C. Molton, "Police and the Criminal 
Informant," unpublished dissertation for the Advanced Course 
3/80 Project, Metropolitan Police Detective Training School.      

     (3) James Reese, "Motivations of Criminal Informants," FBI 
Law Enforcement Bulletin, May 1980, p. 24.                        

     (4) There may be occasional exceptions to this rule.  For 
example, a judge may require an "ex parte, in camera" hearing 
to determine the source's reliability and accuracy of the 
information provided.  Prosecutors may want to talk to a source 
before they seek warrants or subpoenas.