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.

---

S25-2013 Actions

• Jan 9, 2013: REFERRED TO CODES

S25-2013 Memo

BILL NUMBER:S25

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.

S25-2013 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                     25

                         2013-2014 Regular Sessions

                              I N  SENATE

                                 (PREFILED)

                               January 9, 2013
                                 ___________

  Introduced by Sen. ESPAILLAT -- 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,

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD01825-01-3

 S. 25                               2

  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.