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  • Brian Foley

Woodlands Criminal Defense Attorney - Texas Rules of Evidence Series RULE 508

Everyone hates the rat. Except the Texas rules of Evidence. Rule 508 is the Snitch rule. A frequently used law enforcement technique is the use of a person as a confidential informant. Wearing a wire, or now-a-days driving a car rigged up with cameras and wires and conducting a drug deal or solicitation of murder or any other crime that is organized or may be planned.


Because of the obvious issue with informers being targeted for retaliation by the persons that they betray and help convict of criminal offenses the courts basically recognize the existence of the phrase, "Snitches get stitches."


The rules provides that the State can refuse to disclose a person's identity if they provide information to law enforcement or even a legislative committee or its staff. This can be waived if the informant waives it or if they appear as a witness for the State.


But if the government wants to prosecute you for a crime which can only be proven through the use of the informant then they are going to have to disclose the identity of the informant. The rule provides that,

if there is "a reasonable probability that the informer can give testimony necessary to a fair determination of guilt or innocence" then the State has to disclose their identity or the case should be dismissed.


This is a pretty interesting rule because it explicitly provides an avenue for the judge to dismiss the case outright which is extremely unusual for rules of evidence. The whole rule is verbose and looks more like a rule of Criminal Procedure than a Rule of Evidence. In a civil case it give the Judge the discretion to make "any order that justice requires." Which I guess is code for dismiss the civil case.


PROCEDURE


In order to determine if the State will have to give up the identity the court is supposed to review the information from the State in his office alone, or "in camera" as it is called by stuffy lawyers. After review the Judge has the ability to receive testimony about the matter in order to make the decision.


If the court does not order an in camera hearing on the issue when the informant was present on the scene of the offense and observed the drugs immediately before police arrested the defendant then the case could be reversed on appeal. Loving v. State, 882 S.W.2d 42 (Tex. App. -- Houston [1st Dist.] 1994, no pet.). Sanchez v. State, 98 S.W.3d 349 (Tex. App. -- Houston [1st Dist.] 2003, pet. ref'd).


WHISPER STOPS


There is a police practice to try to take advantage of this rule which is defined by its exception forcing police to disclose the identity of informants. They call it a "whisper stop." A whisper stop is where someone has knowledge of a criminal transaction like a large quantity of drugs being transported from a stash house to some other location. The person then informs the police of the person, time, vehicle, and other information about the transportation of the drugs. The police then find the correct vehicle and follow it attempting to make a stop based on some other reason like speeding, failure to signal lane change, or the infamous and morally reprobate offense of "wide right turn." If the police can generate a valid reason for a stop for one of these reasons and independent of the information provided by the informant then the judge may rule that the informant's identity can be protected.


"Wide Right Turn" Sec. 545.101. TURNING AT INTERSECTION. (a) To make a right turn at an intersection, an operator shall make both the approach and the turn as closely as practicable to the right-hand curb or edge of the roadway.





Rule 508. Informer’s Identity Privilege

(a) General Rule. The United States, a state, or a subdivision of either has a privilege to refuse to disclose a person’s identity if:

(1) the person has furnished information to a law enforcement officer or a member of a legislative committee or its staff conducting an investigation of a possible violation of law; and

(2) the information relates to or assists in the investigation.


(b) Who May Claim. The privilege may be claimed by an appropriate representative of the public entity to which the informer furnished the information. The court in a criminal case must reject the privilege claim if the state objects.


(c) Exceptions.

(1) Voluntary Disclosure; Informer a Witness. This privilege does not apply if:

(A) the informer’s identity or the informer’s interest in the communication’s subject matter has been disclosed—by a privilege holder or the informer’s own action—to a person who would have cause to resent the communication; or

(B) the informer appears as a witness for the public entity.


(2) Testimony About the Merits.

(A) Criminal Case. In a criminal case, this privilege does not apply if the court finds a reasonable probability exists that the informer can give testimony necessary to a fair determination of guilt or innocence. If the court so finds and the public entity elects not to disclose the informer’s identity:

(i) on the defendant’s motion, the court must dismiss the charges to which the testimony would relate; or

(ii) on its own motion, the court may dismiss the charges to which the testimony would relate.


(B) Certain Civil Cases. In a civil case in which the public entity is a party, this privilege does not apply if the court finds a reasonable probability exists that the informer can give testimony necessary to a fair determination of a material issue on the merits. If the court so finds and the public entity elects not to disclose the informer’s identity, the court may make any order that justice requires.

(C) Procedures. (i) If it appears that an informer may be able to give the testimony required to invoke this exception and the public entity claims the privilege, the court must give the public entity an opportunity to show in camera facts relevant to determining whether this exception is met. The showing should ordinarily be made by affidavits, but the court may take testimony if it finds the matter cannot be satisfactorily resolved by affidavits.

(ii) No counsel or party may attend the in camera showing.

(iii) The court must seal and preserve for appeal evidence submitted under this subparagraph (2)(C). The evidence must not otherwise be revealed without the public entity’s consent.


(3) Legality of Obtaining Evidence.

(A) Court May Order Disclosure. The court may order the public entity to disclose an informer’s identity if:

(i) information from an informer is relied on to establish the legality of the means by which evidence was obtained; and

(ii) the court is not satisfied that the information was received from an informer reasonably believed to be reliable or credible.


(B) Procedures.

(i) On the public entity’s request, the court must order the disclosure be made in camera.

(ii) No counsel or party may attend the in camera disclosure.

(iii) If the informer’s identity is disclosed in camera, the court must seal and preserve for appeal the record of the in camera proceeding. The record of the in camera proceeding must not otherwise be revealed without the public entity’s consent.


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