Can a Defendant Learn Who the Confidential Informant Is?

01Why the informant is where origin fights happen

Parallel construction needs a replacement starting point. A traffic stop can be one. A tip can be one. An informant can be the cleanest one of all, because an informant is a person with a plausible reason to be there, not a database or a program.

That is not speculation about any particular case. When Reuters reported on the DEA's Special Operations Division on Aug. 5, 2013, it listed informants among the sources of the unit's tips, alongside wiretaps and intercepts, and described agents being told to keep that unit out of their reports (Reuters; text also available via a reprint). Our homepage lists the informant as one of the documented techniques.

So when a defense lawyer asks who the informant is, the question is often bigger than one witness. It can be a question about how the government came to be looking at the defendant at all.

02Roviaro: the balancing test

The informer's privilege is the government's right to withhold the identity of people who give information about crimes to law enforcement. The Supreme Court described its purpose in Roviaro v. United States, 353 U.S. 53 (1957): to encourage people to report crimes.

The facts were simple. An informer known only as “John Doe” helped set up a heroin transaction and was present for it. The defense asked repeatedly for his identity. The government refused. Doe was the only other participant in the transaction and the only witness who could contradict or explain the officers' account.

The Court reversed the conviction. It made three points that still frame these fights:

• The privilege has limits. It does not cover the contents of a communication that would not reveal the informer's identity. It ends once the identity is already known to those who would resent the informer.
• Fairness can override it. Disclosure is required when the informer's identity or communication is “relevant and helpful to the defense of an accused,” or essential to a fair determination of the case.
• No fixed rule. Courts balance the public interest in protecting the flow of information against the defendant's right to prepare a defense, looking at the crime charged, possible defenses, the possible significance of the informer's testimony and other factors.

The closer the informant is to the charged events, the stronger the case for disclosure. In Roviaro, the informer was a participant. A person who only passed along a tip stands in a weaker position for the defense.

03McCray: a different rule before trial

Ten years later, the Court drew a line between trial and the earlier question of whether police had grounds to arrest or search. In McCray v. Illinois, 386 U.S. 300 (1967), officers testified under oath at a pretrial hearing about an informant's reliability, were cross-examined, and were believed by the judge. The Court held that neither due process nor the right to confront witnesses required the state to name the informant at that stage.

McCray treated Roviaro as a trial case about guilt or innocence, not a rule for probable-cause hearings. Four justices dissented, arguing that defendants need disclosure to challenge whether an informant's tip really supplied probable cause.

The practical result: the stage of the case matters. A request that fails at a suppression hearing may be judged differently when the informant's role bears directly on guilt at trial.

Franks v. Delaware (1978) did not close the gap. It allows challenges to falsehoods by the officer who swore the affidavit, not by the informant, and it left open whether an informant's identity must ever be disclosed after a showing of falsity. We cover Franks in our discovery guide.

04Giglio: what the defense can learn about a paid source

Identity is one question. Credibility is another. Under Brady v. Maryland (1963), prosecutors must disclose material evidence favorable to the accused. Giglio v. United States (1972) applied that to a key witness who had been promised he would not be prosecuted if he testified. The trial prosecutor did not know about the promise. The Court reversed anyway, because a promise by one prosecutor binds the government.

For informants who testify, that means payments, promises of leniency and other benefits are the kind of evidence a jury may be entitled to weigh. Whether a particular item must be disclosed, and when, depends on materiality and the facts of the case.

05The Attorney General's guidelines on FBI sources

The FBI's use of informants, which it calls confidential human sources, is governed by the Attorney General's Guidelines Regarding the Use of FBI Confidential Human Sources. The version the Justice Department posted in its FOIA library is attached to a December 2020 FBI memo proposing revisions. At a high level, it describes:

• an initial validation of every source, documenting identity, criminal history, motivation and any promises or benefits, with supervisory review;
• a review of each source file at least once a year;
• instructions to sources that they are not government employees, must not act independently on the government's behalf, and are not guaranteed payment or immunity;
• payment rules: payments must reflect the value of the information, may never depend on a conviction or punishment, must be witnessed, and must be recorded in the source file;
• an obligation for the FBI to tell prosecutors when a source is involved in their case or will testify, and to pass along exculpatory information about a source.

Those records exist because the guidelines require them. Whether a defendant ever sees any of them is a separate question, governed by the cases above and by the court.

06What our Mall of America file shows

Our Case File 003 applies these questions to one pending federal case. The defendant is presumed innocent, and the allegations involve planned mass violence. We take both seriously.

What the FBI's sworn affidavit says about the informant is limited, and we report only what it says: the source, called “CHS1,” had worked with the FBI since 2017 and was described as motivated by patriotism and monetary compensation. The affidavit dates both the investigation and the source's first messages to about December 2024.

Paid informants also run through the entrapment question, which turns on predisposition before the government's first approach (Jacobson v. United States). Human Rights Watch and Columbia Law School documented informant-driven terrorism cases in “Illusion of Justice” (July 21, 2014).

07Questions to bring to a defense lawyer

Only a lawyer who knows the case can judge whether a disclosure motion makes sense. These are starting questions, not a plan. See also our homepage's Fight Back section.

1. Was the informant a participant in the charged events, or only a source of a tip?
2. Who contacted whom first, and does any document in discovery answer that?
3. Has the government disclosed payments, benefits or promises to the informant?
4. Does the informant's account appear in the affidavit as the basis for probable cause?
5. Is there any sign the informant was directed toward someone the government already knew about?

09Sources

Every fact in this dispatch comes from the documents below. If you spot an error, tell us and we'll correct it on this page.

1. Roviaro v. United States, 353 U.S. 53 (1957)
2. McCray v. Illinois, 386 U.S. 300 (1967)
3. Brady v. Maryland, 373 U.S. 83 (1963)
4. Giglio v. United States, 405 U.S. 150 (1972)
5. Franks v. Delaware, 438 U.S. 154 (1978)
6. Jacobson v. United States, 503 U.S. 540 (1992)
7. U.S. Department of Justice FOIA Library, The Attorney General’s Guidelines Regarding the Use of FBI Confidential Human Sources, attached to FBI memo proposing revisions, Dec. 23, 2020
8. Reuters, “U.S. directs agents to cover up program used to investigate Americans”, Aug. 5, 2013 (reprint)
9. Human Rights Watch and Columbia Law School, “Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions”, July 21, 2014
10. ParallelConstruction.org, Case File 003: The Mall of America Plot (sources the FBI affidavit, D. Minn. No. 26-mj-760)

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