Bill S1229-2011

Regulates the use of informants by the prosecuting attorney and law enforcement personnel

Regulates the use of informants by the prosecuting attorney and law enforcement personnel; requires law enforcement personnel to submit an annual report to the department of state with statistical information relating to their use of informants.

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  • Jan 4, 2012: REFERRED TO CODES
  • Jan 6, 2011: REFERRED TO CODES

Memo

BILL NUMBER:S1229

TITLE OF BILL:

An act to amend the criminal procedure law, in relation to the regulation of the use of informants

PURPOSE OR GENERAL IDEA OF BILL:

To introduce more transparency, uniformity and formality into law enforcement's use of informants. To protect society from the troubling side effects of this largely unregulated practice.

SUMMARY OF SPECIFIC PROVISIONS:

Compiles annual statistics about law enforcement use of informants to assist with judicial and legislative oversight. Provides defendants and their attorneys with vital information about informants offering testimony against them through full disclosure, reliability hearings and depositions. Places limits on who can be turned into an informant.

JUSTIFICATION:

This bill is designed to provide guidelines, and to allow for more legislative, judicial and public scrutiny over the practice of using informants to solve crimes to ensure that it is truly benefiting society and creating safer neighborhoods for New Yorkers. It also attempts to provide for more continuity in the circumstances surrounding the creation and maintenance of informants. The bill does not intend to eliminate the practice, rather it seeks to set standards and achieve greater oversight of the entire process.

Informants provide information to government officials, police, prosecutors, etc exchange for some sort of government benefit. It is a very common and pervasive practice in today's law enforcement, that largely goes unchecked, unregulated and without scrutiny.

Most often, informant use is particularly referring to someone who provides information about another person's criminal behavior in exchange for a government conferred benefit, such as avoidance of prosecution or arrest, a reduction of charges, privileges while in prison etc. Informing can be an enormous labor and time saving device for both police and prosecutors that can be essential for prosecution of certain types of cases.

However, legislative, judicial and public entities rarely have the opportunity to review these negotiations. Informant agreements do not require judicial approval to make sure they are in society's best, interest, as plea agreements do. Instead, the practice relies almost completely on police and prosecutorial discretion. The use of informants also creates a system in which defendants are often convicted largely on the testimony of what is essentially a 'paid' informant. This testimony can be very difficult to contradict and extremely persuasive to a jury. There are no official statistics or numbers relating to how often

informants are used, where, or what crimes are being traded for what information, or what kind of convictions result.

Moreover, there is absolutely no uniformity in informant practices. The situation and the arrangements vary greatly. Police routinely overlook past, present and continuing crimes such as drug abuse and dealing, or worse because they do not want to lose their informant.

The question then arises, does this result in a net gain or loss for the community? Potentially, the informant system is contributing to crime, in addition to fighting it. Moreover, it is fairly well known that informants are sometimes selective in who they 'rat out,' basing it on their own convenience rather than an individual's threat to society.

Despite the apparent advantages to the informant, they also incur serious risks. The informant is deprived of many of the protections and rights that our constitution was designed to include. When someone agrees to be an informant in order to avoid an arrest, they are essentially admitting guilt, often without the benefit of defense counsel, Miranda warning, or written agreement. These agreements can last years and offer no guarantee against eventual arrest. During this time, the informant is constantly in peril. Frequently, those who are discovered by their peers, to be informants face dire consequences.

The management of informants needs to be made more uniform and formal in order to protect everyone involved.

In conclusion, the practice of using informants can be detrimental to the community as a whole. The fact that informants can commit certain crimes with police permission gives the impression that criminality and morality are relative. It promotes disloyalty and heightens mistrust and anger between law enforcement and communities and within the communities themselves.

PRIOR LEGISLATIVE HISTORY:

A.10096 of 2006 A.1124 of 2007-2008 2009: S.6341 (Duane) Died in Rules; A.3712 (Lentol) Died in Codes 2010: S.6341 (Duane) Died in Codes; A.3712 (Lentol) Died in Codes

FISCAL IMPLICATIONS:

None to the State.

EFFECTIVE DATE:

September first next succeeding the date on which it shall have become a law.


Text

STATE OF NEW YORK ________________________________________________________________________ 1229 2011-2012 Regular Sessions IN SENATE January 6, 2011 ___________
Introduced by Sen. DUANE -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to the regu- lation of the use of informants THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The criminal procedure law is amended by adding a new section 60.77 to read as follows: S 60.77 RULES OF EVIDENCE; USE OF CONFIDENTIAL INFORMANTS. 1. WHENEVER A PROSECUTING ATTORNEY PLANS TO USE AN INFORMANT TO TESTI- FY AGAINST A DEFENDANT, THE ATTORNEY FOR SUCH DEFENDANT SHALL BE SUPPLIED WITH: A. THE COMPLETE CRIMINAL RECORD OF THE INFORMANT; B. ANY TESTIMONY OR INFORMATION THE INFORMANT HAS PROVIDED OR HAS PROMISED TO PROVIDE FOR ANY LEGAL ACTION; C. ALL STATEMENTS MADE BY THE INFORMANT ABOUT THE SPECIFIC LEGAL ACTION IN QUESTION; AND D. ALL PROMISES, COMPROMISES, OR PROTECTIONS OFFERED BY THE PROSECUT- ING ATTORNEY TO THE INFORMANT IN EXCHANGE FOR HIS OR HER TESTIMONY. THIS SHALL ALSO INCLUDE ANY INFORMATION ABOUT CRIMES COMMITTED BY THE INFOR- MANT FOR WHICH CHARGES WILL NOT BE BROUGHT IN EXCHANGE FOR HIS OR HER TESTIMONY. 2. THE ATTORNEY FOR THE DEFENDANT SHALL BE GIVEN THE OPPORTUNITY TO DEPOSE THE INFORMANT PRIOR TO ENTERING INTO ANY PLEA NEGOTIATIONS OR GOING TO TRIAL. 3. UPON THE REQUEST OF THE ATTORNEY FOR THE DEFENDANT, THE JUDGE SHALL GRANT A RELIABILITY HEARING, WHICH SHALL BE USED TO DETERMINE THE CREDI- BILITY OF THE INFORMANT'S TESTIMONY. BOTH THE PROSECUTION AND THE ATTOR- NEY FOR THE DEFENDANT SHALL BE ENTITLED TO OFFER EVIDENCE RELATING TO THE INFORMANT'S RELIABILITY. THE JUDGE, IN HIS OR HER OWN DISCRETION, SHALL WEIGH THE EVIDENCE AND DETERMINE IF THE INFORMANT IS A RELIABLE
WITNESS. IF THE INFORMANT IS FOUND TO BE UNRELIABLE, HE OR SHE SHALL BE PROHIBITED FROM TESTIFYING AGAINST THE DEFENDANT. 4. NOTWITHSTANDING ANY OTHER PROVISION OF LAW RELATING TO THE PLEA BARGAINS, NO PROSECUTING ATTORNEY SHALL OFFER A DISMISSAL OF OR REFUSE TO BRING CHARGES FOR THE CRIMES OF MURDER, MANSLAUGHTER, RAPE, OR KIDNAPPING IN EXCHANGE FOR THE TESTIMONY OF A PERSON. 5. IF A PERSON HAS COMMITTED A CRIME THAT, IF CONVICTED, WOULD RESULT IN A CONVICTION OF A CLASS A MISDEMEANOR OR ANY CLASS OF FELONY, LAW ENFORCEMENT OFFICERS OR THE PROSECUTING ATTORNEY MUST RECEIVE JUDICIAL CONSENT BEFORE USING SUCH CHARGE AS A PLEA OFFER IN EXCHANGE FOR THE TESTIMONY OF THE PERSON. 6. COMMENCING JANUARY FIRST IN THE YEAR FOLLOWING THE EFFECTIVE DATE OF THIS SECTION, AND EVERY JANUARY FIRST THEREAFTER, ALL LAW ENFORCEMENT PERSONNEL WHO USE INFORMANTS SHALL FILE A REPORT WITH THE DEPARTMENT OF STATE. THE REPORT SHALL BE AVAILABLE TO PUBLIC INSPECTION AND MAY BE MADE AVAILABLE ON THE DEPARTMENT OF STATE WEBSITE OR IN OTHER ELECTRONIC FORMATS. THE REPORT SHALL INCLUDE: A. THE EXACT NUMBER OF INFORMANTS CREATED AND SUSTAINED BY EACH DEPARTMENT OR OFFICE; B. THE NUMBER OF OCCURRENCES WHEN A SUSPECT BECOMES AN INFORMANT WITH- OUT EVER BEING OFFICIALLY CHARGED WITH A CRIME; C. THE NUMBER OF OCCURRENCES WHEN A SUSPECT HAS CHARGES DROPPED AFTER AGREEING TO BECOME AN INFORMANT; D. THE SPECIFIC OFFENSES THAT HAVE BEEN DROPPED AS THE RESULT OF AN INDIVIDUAL BECOMING AN INFORMANT; E. THE NUMBER OF ARRESTS THAT ARE THE DIRECT OR INDIRECT RESULT OF THE USE OF AN INFORMANT AND THE ROLE PLAYED BY THE INFORMANT FOR EACH SUCH ARREST; F. THE NUMBER OF CONVICTIONS THAT ARE THE DIRECT OR INDIRECT RESULT OF THE USE OF AN INFORMANT AND THE ROLE PLAYED BY THE INFORMANT FOR EACH SUCH CONVICTION; AND G. THE AGE, RACE, GENDER, AND NEIGHBORHOOD OF RESIDENCE OF EACH INFOR- MANT. S 2. This act shall take effect on the first of September next succeeding the date on which it shall have become a law.

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