Witness Corroboration for Informants Under TCCP 38.141

Maybe the most famous informant of all time is Judas, who informed on Jesus to the Roman authorities for thirty pieces of silver.  Check out “The Passion of the Christ” for a great depiction of Judas as informant and the aftermath.  Another famous informant:  Lando Calrissian, who informed on Han Solo to the Empire, resulting in Han Solo spending a very long time frozen in carbonate on Jabba the Hut’s wall in “Star Wars Episode V: The Empire Strikes Back.”

Informants can do very bad things and pervert justice in countless ways.  From a defense perspective, the danger here is that wrongful convictions can be the result.  Fessinger, Melanie B., et al. “Informants v. innocents: Informant testimony and its contribution to wrongful convictions.” Cap. UL Rev. 48 (2020): 149.

A prime example is the infamous 2001 Dallas Fake Drugs Scandal which resulted in the passage of Texas Code of Criminal Procedure Article 38.141 and Texas Code of Criminal Procedure Article 38.075 to deal with confidential police informants (TCCP 38.141) and jailhouse snitches (TCCP 38.075) in the aftermath of the travesty.  The Texas Legislature responded to public outcry and passed these two statutes after a collusion between six police informants and several members of the Dallas Police Department was exposed involving the creation of numerous false drug crimes.  For details of the scandal, read our earlier discussion in Witness Corroboration Under the Texas Penal Code: Who Believes a Snitch?

The Dallas scandal was no anomaly.  The power of an informant to destroy lives is well-known and a legitimate concern for all criminal defense lawyers.  It is a constant danger. For instance, read “Planted drugs, secret deals, lies: How one bad informant ruined the lives of at least 4 San Antonians,” published by KSAT-TV on February 1, 2022.

Who is an Informant?

Anyone who gives information to law enforcement that may help them in a criminal investigation is considered to be an informant.  The most powerful of these informants are those whose identities are unknown to those accused of criminal acts. They are unnamed, known only as “confidential informants.”

A confidential informant is defined by the Department of Justice as “… a secret source who, through a contact officer, supplies information on criminal activity to the police or law enforcement agent.”

Police and prosecutors argue that informants may be the only way that law enforcement can get a break in a case that leads to an arrest and conviction.  Think about CrimeStoppers, for example, where informants are promised anonymity.  This is considered key for the success of the program.

As described by the Texas Governor’s Office:

“Crime stoppers has been the most successful crime solving and crime fighting program in the history of law enforcement because it has all of the necessary elements to induce people to give information to crime stoppers which can be used by law enforcement officers to solve crimes, make arrests, and obtain criminal convictions. The payment of a reward is inducement to some informants, while unnecessary for others. However, the promise that the crime stoppers informant can remain anonymous is a necessity to nearly all informants. It is also important to law enforcement. An informant whose identity is revealed may be subjected to threats and retaliation. The informant is of little future use to law enforcement officers if the criminals all know that the person is a crime stoppers informant and cannot be trusted with information about criminal activities. If an informant is “burned” or “upped” by law enforcement officers who disclose the informant’s identity without the consent of the informant, then the law enforcement officer and agency cannot be trusted by informants. When the promise of anonymity is not kept, then the flow of information to police agencies is seriously reduced in the future until a new trust can be established….”

From a defense point of view, any “Crime Stopper” is really a tipster calling a 1-800 number often motivated by a substantial reward who must be scrutinized for a lack of integrity and reliability.

Many times, these informants are not just members of the public anxious to do the right thing, but instead, criminals themselves.  Here in Texas, this is often the case in drug prosecutions.  The United Nations Office on Drugs and Crime explains:

Informants are used often in organized crime cases. There are four types of informant: a member of the public, a victim of a crime, a member of an organized criminal group or police officers themselves. Informants are also referred to as “justice collaborators” or they may be known as “cooperating witnesses” (UNODC, 2008). 

Most informants are criminals who cooperate with the police in exchange for a reduced charge, sentence, or immunity from prosecution, depending on the judicial system. In some cases, however, honest citizens simply wish to report wrongdoings. Whatever the case, informants often desire to remain anonymous. Many courts have held that the identity of an informant can be kept confidential, but this not universal. In some jurisdictions, if the defendant can demonstrate that it is relevant to the case, the informant’s identity may be revealed (Brown, 1985; Feuer, 2001; Schreiber, 2001).

Informants are cost-effective because they involve little expense. In most cases, they are cooperating for leniency in their own pending case. Because informants often have inside information, they can be helpful in building cases that would otherwise require months of investigation.

The defense can argue several things against the use of confidential informants in the state’s case; among them, that their use is a violation of the Sixth Amendment of the United States Constitution.

There is a constitutional guarantee of a “public trial” where the accused will be “confronted with the witnesses against him.”  This means that criminal trials are in public forums, i.e., courtrooms in public courthouses.  And the right of confrontation means the right to cross-examine the government’s witnesses for their reliability or bias.  For more, read Demleitner, Nora V. “Witness Protection in Criminal Cases: Anonymity, Disguise or Other Options?” The American Journal of Comparative Law 46.suppl_1 (1998): 641-664.

An argument of Fifth Amendment due process violations may be viable, as well.  For instance, if the confidential informant was used as the basis of a grand jury indictment, then a motion to dismiss may be considered. The United States Supreme Court has held that an indictment must be dismissed if “…it is established that the [5^th Amendment] violation[s] substantially influenced the grand jury’s decision to indict” or where “there is grave doubt that the decision to indict was free from the substantial influence of such violations.” Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988).

Accordingly, in many instances the prosecution will attempt to meet its burden of proving the criminal charges beyond a reasonable doubt by putting the informant on the stand.

Of course, any experienced criminal defense lawyer in Texas will be quick to point out the temptation for prosecutors to allow questionable witnesses to take the stand in order to build the prosecution’s case or before trial, to solidify their allegations against the accused in plea negotiations.  Prosecutors are known for allowing professional pride or biased zeal to taint the system of justice.  For details, read our earlier discussion in: In Texas, We Need Laws That Force Police And Prosecutors To Do The Right Thing: The Criminal Defense Reality.

Witness Corroboration Requirement Under TCCP 38.141

This brings us to witness corroboration.  In 2001, the Texas legislature passed a law addressing the problems of having a prosecutor put an informant on the stand to try and help prove the state’s case.

This law is found in Texas Code of Criminal Procedure article 38.141, entitled Testimony of Undercover Peace Officer or Special Investigator (“TCCP 38.141”).  TCCP 38.141 states (emphasis added):

 (a)  A defendant may not be convicted of an offense under Chapter 481, Health and Safety Code, on the testimony of a person who is not a licensed peace officer or a special investigator but who is acting covertly on behalf of a law enforcement agency or under the color of law enforcement unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.

(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows the commission of the offense.

(c) In this article, “peace officer” means a person listed in Article 2.12, and “special investigator” means a person listed in Article 2.122.

Sufficiency of Witness Corroboration for Informants Under TCCP 38.141

In 2008, the Texas Court of Criminal Appeals explained the standard to be used in determining if the prosecution has complied with the witness corroboration requirements of TCCP 38.141. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008).

In Malone, the High Court answered the question of “what standard applies in determining whether covert agent testimony is sufficiently corroborated by other evidence that tends to connect the defendant to the offense?”  It held that:

1. The same standard for corroboration evidence applies when a covert-agent takes the stand as when an accomplice witness takes the stand.
2. The standard is met only if (a) the testimony of the covert agent is excluded and ignored and then (b) the remaining evidence provided by the government is considered to determine if there is authentic and admissible evidence that “tends to connect the defendant to the commission of the offense.”
3. How much does the ADA have to provide here? The remaining evidence does not have to prove the defendant’s guilt beyond a reasonable doubt by itself, explains Malone. It need only (a) link the accused in some way to the commission of the crime and (b) show enough that “rational jurors could conclude that this evidence sufficiently tended to connect [the accused] to the offense.”

For the criminal defense attorney, this test is key to arguing against the admission of witness testimony from an informant.  It is the job of the defense to show the court, either at trial or on appeal, that excluding the testimony of the informant leaves insufficient evidence that the accused committed the offense.

Pursuant to Malone, the defense must show insufficient corroborating evidence has been provided by the ADA that tends to connect the defendant to the offense. Malone, 253 S.W.3d at 258-59.

Defense Exclusion of Informant Testimony for TCCP 38.141 Noncompliance

Excluding the informant’s witness testimony must be accomplished by court ruling.  The defense lawyer must take the proactive action of moving the court to exclude the testimony or suppress it, using TCCP 38.141 as the cornerstone of the request.

Informant testimony should never go unchallenged by the defense.  There will likely be a defense pretrial motion seeking to suppress the informant’s testimony, arguing exclusion under the test of TCCP 38.141.

Furthermore, in addition to a motion to suppress, the defense lawyer can also get a jury instruction for TCCP 38.141.  The jury would have to find beyond a reasonable doubt that the informant’s testimony is corroborated or it shall disregard the informant’s testimony.

When the State’s Witness is an Informant

Confidential informants build relationships with law enforcement over time that are both personal and professional.  There are even contractual agreements (including limitations of liability) offered at both the state (Tarrant County example) and federal level (ATF example).  Anytime there is even a suspicion of the involvement of an informant in an investigation or prosecution, particularly a confidential informant, the experienced criminal defense lawyer will begin taking steps to discover unconstitutional traps in the state’s case.

As explained by the United States Supreme Court in Banks v. Dretke, 540 U.S. 668, 124 S. Ct. 1256, 157 L. Ed. 2d 1166 (2004):

 This Court has long recognized the “serious questions of credibility” informers pose. On Lee v. United States, 343 U. S. 747, 757 (1952).… We have therefore allowed defendants “broad latitude to probe [informants’] credibility by cross-examination” and have counseled submission of the credibility issue to the jury “with careful instructions.” On Lee, 343 U. S., at 757; accord, Hoffa v. United States, 385 U. S. 293, 311-312 (1966).

The revelation of an informant as part of the state’s case is a portent to the defense that the prosecution’s case may be deficient.  Challenging witness corroboration of the informant witness, as provided by the Texas Legislature in TCCP 38.141, is crucial for the defense in these matters.

For more, read:

• Witness Corroboration When Defending Sexual Assault Charges in Texas
• Perjury and Aggravated Perjury: Witness Corroboration Issues for Criminal Defense
• Prosecutor Caught Withholding Evidence from Defense – Again.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,”10 Questions to Ask Before You Hire a Criminal Defense Lawyer.”