Generally speaking, an informant's testimony is necessary for a fair determination of the merits if he or she is a "transactional witness." See, State v. Outlaw, 108 Wis.2d 112, 321 N.W.2d 145 (1982). A transactional witness is one who-- quite literally-- was involved in a relevant drug transaction with the defendant, or one who is an eyewitness to any relevant event. If this is the case, the defendant must file a motion to identify the confidential informant. If the court agrees, the judge will order the State to identify the informant. At that point the prosecutor is confronted with an important decision. He may either comply with the court's order to identify the informant, or he may dismiss the case. Not surprisingly, many times the State will dismiss the case rather than identify the confidential informant. This is because the confidential informant is most likely providing information on a number of individuals. Identifying the informant would jeopardize all such investigations.
It may seem obvious that most informants-- if they really possess information about drug dealing-- must necessarily be transactional witnesses. However, in practice, this is not the case. Frequently, the informants are used only to obtain search warrants. Typically, the search warrant will allege something to the effect that "confidential informant number 55874 ("CI")" was, within the past seventy-two hours, inside the home of the suspect, John Doe, and observed packaging materials, cash, and a baggies containing white powder that CI knows to be cocaine. Days later, agents will execute the warrant and the defendant is charged with possession of cocaine with intent to deliver.
If the defendant, John Doe, attempts to force the state to identify the confidential informant, the State takes the position that the only relevant evidence is what occurred on the day the warrant was executed. The defendant may argue that the confidential informant is an eyewitness to the identity of the occupants of the home (if there were more than the defendant), and who exercised dominion and control over the drugs near in time to the execution of the warrant. Unfortunately, though, this argument rarely persuades the judge.
In federal court , the defendant's task in forcing the government to identify the confidential informant is somewhat easier. The federal authorities tend to make use of conspiracy to distribute charges more frequently than they charge simple possession of drugs, or possession with intent to distribute. Thus, the government informants are far more likely to be transactional witnesses. Informants in conspiracy charges tend to give information to the effect that he was associated with the defendant, John Doe, for six months in the year 2009 and, during that time, John Doe distributed approximately one kilogram of cocaine per month in the Eastern District of Wisconsin. Plainly, such testimony is necessary to a fair determination of whether the defendant is guilty of conspiracy to distribute cocaine.
There are other obstacles in federal court, though, Typically, if the court orders the government to identify the informants, the order will allow the government to do so no later than thirty days before trial. Since the vast majority of federal charges are resolved short of trial, the government is rarely called upon to actually identify the informant. Nonetheless, for those defendants who do proceed to trial, they will learn the names of the government's confidential informants.
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