We have a case pending where we cannot find a confidential informant. The CI is not crucial to the case as we have a video of the illegal acts by the defendant. Can we play the video, with the CI in it, without calling the CI as a witness? Could we argue that the CI's statements in the video are nontestimonial?Upon further questioning from peers, the Longview ADA revealed that he wasn't worried about revealing the informant's identity, but about "his statements in the video as they relate to Crawford and confrontation" - i.e., the right of the defendant to face his accuser.
Trial tomorrow... need help.
In other words, the informant apparently played a more significant role in the undercover arrangement than prosecutors had planned to reveal. The informant's statements on tape, though not exculpatory, could lead the defense to claim the charges were brought in part based on the snitch's accusation. Under the confrontation clause in the Constitution, that would mean the defense is allowed to confront him in court and cross-examine his testimony.
I should mention before going on, the Longview ADA could have saved himself a lot of trouble by revealing the CI to the defense earlier and giving them a chance to interview the witness before trial. Now, when they can't produce the CI, prosecutors are caught looking either a) unprepared or b) like they're concealing something.
But more surprising was this suggestion from a forum participant identified as an Assistant AG at the Texas Attorney General's office: "If the CI does say something cross-Crawford," he suggested, "then you could edit the tape to take it out, possibly."
Hmmmm. Some of you lawyers help me out and tell me if I'm translating the legalese correctly: If the defendant should be allowed to confront the CI-accuser in court (i.e., if evidence on the tape is "cross-Crawford"), the Assistant AG's advice is to edit it out? Really? Not to seek a continuance and find the CI. Not to inform the court the witness isn't available. But to hide the evidence?
I'm not a lawyer; maybe I'm misinterpreting; perhaps that's somehow kosher in legal circles. But something about that doesn't smell right.
As always, I've copied the discussion string onto this Google document in case the association removes the link. UPDATE: See Houston defense attorney Mark Bennett's clarifications in the comments on why this might be okay.