GAVEL GAMUT By Jim Redwine

ANONYMOUS SOURCES

Law enforcement agencies often rely on Confidential Informants to investigate criminal matters. Many times crimes cannot be solved if those who commit the crimes or those they voluntarily tell about the crimes do not talk to the police. It is a truism that it is hard to catch a fish that does not open its mouth.

As long as the police are simply investigating a crime there is no reason why “anonymous sources” should not be mined for information. However, once a law enforcement agency decides to ask a judge for permission to arrest someone or search someone’s home or business, the basis for the judge to determine probable cause must comport with Constitutional standards. And there are both the U.S. Constitution and the Indiana Constitution to consider.

No longer can “anonymous sources” be cited as a basis for probable cause but Confidential Informants may be used as long as the police support the C.I.’s ability to actually know the evidence attributed to them by setting out the facts establishing the C.I.’s ability and opportunity to observe or know of the crime in question.

And if the case goes to court the C.I.’s identity may be ordered disclosed by a judge. In other words, a C.I. must be an actual person who truly had direct knowledge of the crime and the involvement of the defendant who was arrested or whose premises were searched. In my experience as a prosecuting attorney for seven years, a practicing attorney, and a judge for thirty-eight years, when a law enforcement officer cites to a Confidential Informant such a person has almost always been shown to actually exist when required to be divulged by a Court.

Unfortunately, there have been a very few times that a C.I. was created by an officer who let the “ends justify the means”. When such failures occur we all lose because the system of justice is not just. Of course, these bad acts are only disclosed because a court of law can be asked to force the police to disclose the C.I. If there were no oversight of these activities, people could be unjustly convicted and we would all lose because we would lose faith in the legal system. Then even when the officers acted strictly in compliance with the Constitution we might not believe them.

That is the danger of “anonymous sources”. If there is no mechanism to determine if such people truly exist or are simply the figment of a writer’s desire to advance an agenda, the public may lose faith in all reports.

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