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Understanding the Effect on Your Drug Charges When Informants Don’t Testify at Your Trial

Police drug informants, who claim they set you up to sell them drugs, are often the key witness in your drug charge trial. But they’re not always the most reliable people (surprise surprise).

So what happens when the informant doesn’t show up for trial? Well, it can really help sometimes, but in other situations, it might not matter. Regardless, you need to be prepared to take on the informant, and the best way to do that is hiring a professional who’s trained to attack the informant: a skilled criminal defense lawyer.

Let’s review some actual cases to see how unknown or absent informants can shake out.

Unknown Informants Can Get Your Case Thrown Out

In 2007, the South Carolina Supreme Court threw out a conviction when an unknown informant didn’t testify. The jury convicted the suspect of:

  • distribution of crack cocaine,
  • distribution of crack cocaine within the proximity of a school,
  •  possession of crack cocaine with intent to distribute, and
  • possession of crack cocaine with intent to distribute within the proximity of a school.

The case is called State v. Sweet.

Here’s how that controlled drug buy went down. An unknown confidential informant bought drugs from Sweet at a local motel. Before the buy, police searched the informant and his car for drugs before following him to the motel. Once there, officers maintained video surveillance of the motel parking lot. They also wired the informant with a hidden microphone so they could overhear the buy. Officers saw the informant meet Sweet outside the motel and then go inside a motel room with him. Although the officers didn’t see what occurred inside the motel room, they testified they heard only the informant's voice and one other voice through the informant's wire. Plus, video surveillance did not observe anyone entering or leaving the motel room during that time. When the confidential informant left the motel, officers followed him back to the police station, where he handed them crack cocaine from the apparent drug buy.

So police really did about all they could do to make an airtight case,  except for one thing: the informant didn’t testify at trial! The Supreme Court overturned the drug conviction, ruling the State couldn’t prove the chain of custody required to get drugs in evidence at criminal trials.

The Supreme Court found the chain of custody defective because:

  1. No witnesses testified about seeing inside the motel room to establish who actually participated in the drug sale.
  2. None of the witnesses who heard only “one other voice” over the informant's body mike could identify that voice as Sweet’s.
  3. Without testimony from the informant, the State couldn’t prove the identity of each person who handled the drug evidence—or the way the evidence got handled.

So it worked out well for Mr. Sweet.

Now let’s look at another situation—and wait until the end before you say you know the answer.

An Informant Who Doesn’t Testify Might Get Evidence Thrown Out—Maybe

In a case called State v. Davis, a 2017 South Carolina Court of Appeals case, a police drug informant didn’t testify at trial. State Law Enforcement Division Agent Asbill testified about a controlled drug buy he set up. An informant went to Davis's residence and returned with meth, paid for with government funds.

At trial, Davis objected to the testimony about the controlled drug buy. The Court of Appeals agreed the testimony was inadmissible hearsay and violated Davis’s Sixth Amendment constitutional right to cross-examine his accusers.

The Court pointed out the problem with Asbill’s testimony: during the buy, he was parked at a nearby school and had no visual surveillance of Davis's residence. In addition, he couldn’t identify the voices in the informant’s body wire recording. Consequently, Asbill had no personal knowledge of what the informant actually did during the buy.

In ruling the testimony violated the constitution, the Court made an interesting point about confidential informants:

Tips provided by confidential informants are knowingly and purposely made to authorities to accuse someone of a crime and are often used against the accused at trial. The very fact that the informant is confidential—meaning his identity is not disclosed to the defendant—heightens the dangers involved in allowing a declarant to bear testimony without confrontation. The allowance of anonymous accusations of crime without any opportunity for cross-examination would make a mockery of the Confrontation Clause.

Unfortunately for Davis, that wasn’t the end of the story. The court later ruled admitting the testimony was “harmless error.” That’s a legal doctrine that says, “It was wrong, but it doesn’t matter.” The Court basically reasoned the testimony, which involved 3.5 grams of meth, played little importance in the State's case against Davis for conspiracy to traffick 100 grams or more of the drug with his five co-conspirators.

So the State v. Davis case shows us you need to be prepared to take on confidential informants whether they show up at trial or not. The truth is, you might not know if they’re showing up until the trial starts. The best way to be prepared is to have someone on your side who knows what to expect if they do testify.

Don’t Count on a Miracle

As these cases show, you need an experienced criminal defense lawyer who is prepared to confront police informants. If the informant testifies, a talented lawyer may be able to undermine or destroy the believability of the informant’s testimony by exposing the informant’s motive to testify against you and the informant’s unsavory criminal record. To do that, you need an attorney who knows the legal procedure to get that information—and knows how to use it.

In the end, the best way to get a miracle in your case—or even just a plea deal you’re happy with—is professional legal help from a criminal drug defense lawyer. If you’ve got questions about your drug case, feel free to fill out our Get Help Now form.

 

Rob Usry
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Rob is a South Carolina personal injury and criminal defense lawyer.