Criminal cases built around confidential informants look straightforward on paper. In practice, they are anything but. Informants arrive with tangled motives, fragile credibility, and a history the government prefers to keep behind a curtain. A good criminal defense lawyer spends many hours tracing those threads, because cases involving informants often turn on fine-grained credibility judgments that jurors make in minutes. The work is granular, technical, and often urgent.
The term “confidential informant” covers a spectrum. Some are paid cooperators who make case after case with undercover buys. Others are defendants working off their own exposure. Some are “concerned citizens” who step in once, then vanish. Procedures can differ by jurisdiction and by agency. Still, certain principles and strategies recur. This is a look at how criminal defense counsel approaches informant-driven prosecutions, drawn from the practical trenches rather than a law school outline.
First questions when an informant appears
When discovery hints at an informant, a defense team starts with a short list of questions and builds outward. Who is the informant? What did they see or do? What did they get in return? What is their track record with law enforcement? How much of the government’s case stands without them?
If the government refuses to reveal identity, the inquiry shifts to what can be learned indirectly. The existence of audio or video recordings, the location and timing of controlled buys, the serial numbers of buy money, the search warrant affidavits, the surveillance logs, and chain-of-custody paperwork all become proxies for the informant’s reliability. You are testing the scaffolding that supposedly supports the informant’s story, and looking for weak joints.
Early strategy also depends on posture. In a state-court street sale case, the informant may be the linchpin witness. In a federal conspiracy, the informant might only open the door to wiretaps and pen registers, so the government thinks it can win even if a jury doubts the cooperator. Either way, defense counsel wants to map what evidence remains if the informant were plucked out of the case. That mental subtraction exercise guides the rest of the defense.
The incentive problem
Informants nearly always want something. The promised benefit could be cash, a sentencing recommendation, a charging decision that spares a family member, or simply the chance to avoid revocation on a probation case. The more concrete the benefit, the stronger the incentive to embellish. Criminal defense attorneys know to translate promises into pressure. A “substantial assistance” motion sounds dignified, yet in practice it can feel like a countdown clock on the informant’s liberty. People say a lot when they think it will save them a decade.
This is not to say informants lie as a rule. Many cooperate precisely because they have the goods and want the benefit that follows. Others mix truth with self-serving color. A defense team does not assume fraud, it assumes human nature. We look for how the incentive shaped the story. Did the informant deliver convenient details that popped up only after they learned what the police needed? Did their narrative grow more confident as the reward looked more certain? Are there sudden memory gaps around moments where the informant might be culpable?
These patterns become cross-examination themes only after corroboration is measured. A jury will forgive incentives if the story sits squarely on recordings and physical evidence. They will not forgive incentives that explain away contradictions the government cannot resolve.
Informer’s privilege and the fight over identity
Prosecutors often invoke the “informer’s privilege” to withhold names and backgrounds. The privilege is not absolute. Courts balance the public interest in encouraging the free flow of information with a defendant’s right to prepare a defense. The balance shifts case by case. If the informant was a mere tipster whose information justified further police investigation, courts are more protective. If the informant participated in the alleged crime or is essential to guilt or innocence, disclosure becomes more likely, especially close to trial.
The defense lawyer’s job is to build the record that moves the scale. Motions emphasize how the informant’s perspective is unique and non-substitutable. Perhaps only the informant can explain missing minutes between alleged hand-to-hand exchanges, or the precise location inside a residence where surveillance could not reach. If there is a mistaken identity defense, the informant’s identification procedures and their personal familiarity with the accused are central. Those arguments give a judge specific reasons to order disclosure or, at least, to conduct an in camera review.
In practice, courts sometimes fashion middle-ground remedies. They might require the prosecution to disclose the informant’s criminal history and benefits, while delaying identity until closer to trial. They might permit defense counsel, but not the defendant, to learn the identity under a protective order. These partial measures are not always satisfying, but they can be enough to sharpen impeachment and steer plea discussions.
Discovery that defense counsel presses for
Defense counsel in an informant case tends to be unusually granular about discovery. We move past police reports and ask for underlying material that often reveals inconsistencies or shortcuts. Audio and video of controlled buys are foundational. So are surveillance logs, transcripts, and any contemporaneous notes. If the case involves recorded calls, we ask for raw files, not just government-prepared clips. Small omissions matter when a three-minute segment was trimmed to two.
We also ask for evidence of benefits and inducements. That includes cooperation agreements, correspondence about charging decisions for the informant or their associates, payment vouchers, lodging receipts, and internal emails about deactivation or performance concerns. If the informant has a working relationship with a criminal defense law firm in their own case, the sentencing filings can show how prosecutors described the value of their cooperation. Many agencies keep CI files that track reliability ratings, debriefing summaries, and instances of rule violations. Getting those files can require persistence and, at times, court orders.
Search warrant affidavits that rely on informants warrant special attention. The dates, distances, and claimed observations should align with surveillance and geography. If the informant could not have seen what the affidavit describes from a particular vantage point, that can set up a Franks challenge to the warrant based on false or reckless statements. A single misdescribed doorway might become the hinge of an entire suppression motion.
Controlled buys and their weak spots
Controlled buys look tidy when diagrammed. The informant gets searched, handed buy money, meets the target, returns with drugs, and reports back. In the field, the process can be messy. Law enforcement may skip pre-buy searches or conduct them perfunctorily. Surveillance gets blocked by parked cars or a corner that lacks camera coverage. The informant meets multiple people, not just the accused. The buy money goes uncollected, so the controlled link becomes inferential.
Defense counsel combs through each step. Who searched the informant and with what thoroughness? Was the vehicle searched too? If audio equipment malfunctioned, when did that occur and who documented it? Does the timestamp on the video match dispatch records and GPS pings from surveillance vehicles? The government’s story often presumes a straight line from money to drugs. We look for cross streets and lost sight lines that break the chain.
When the buy occurs in a residence, Fourth Amendment issues surface. An informant allowed into a home at the invitation of the accused can sometimes wear a wire and record without violating the homeowner’s rights, yet the law draws lines around the scope of consent. If officers extend beyond what the informant was permitted to do, or if post-buy entries occurred without a proper warrant, suppression becomes possible. Those arguments push prosecutors to rethink charges or to narrow the factual theory they present to a jury.
Recording, transcription, and context
A great deal turns on sound quality and context. Jurors lean hard on recordings, even when the audio is muddy. Defense counsel does not concede the government’s transcript as gospel. We ask for competing transcripts when words are disputed, and for the chance to play disputed segments in open court. Slang matters. In narcotics cases, ordinary words can carry coded meaning. That cuts both ways. The government might infer drug talk from innocuous phrases. The defense can show that an ambiguous conversation is exactly that.
The best cross-examinations around recordings avoid quibbling over every syllable. Instead, they focus on missing pieces. Why did the device cut out when money allegedly changed hands? Why is there clear audio before and after but static at the critical moment? The answers are often mundane, yet the accumulation of gaps can change how a jury perceives the informant’s reliability.
Informant backgrounds, discipline, and patterns
Patterns repeat in informant work. A long-time CI may follow a playbook of coaxing targets into crimes that would not otherwise occur. That bleeds toward entrapment if agents steer too hard or if the accused lacked predisposition. A one-time cooperator may be newly sober and anxious to avoid prison, which can make them brittle under pressure. Defense counsel wants to know if the CI has been deactivated, warned, or listed as “not to be used” by any agency. Those labels do not automatically exclude testimony, but they carry weight.
Paid informants leave paper trails. Vouchers, pay sheets, and texts about scheduling often exist, even if they are guarded. A run of quiet months followed by a sudden burst of productivity right before a sentencing date is a red flag. So is a string of cases where the only consistent witness is the same informant, especially if corroboration is thin each time. In federal court, 5K1.1 or Rule 35 filings can reveal how prosecutors characterize the informant’s help. If the government previously vouched for their reliability, that language may find its way into this case, for better or worse.
Criminal defense counsel also watches for informant cross-contamination. Sometimes a CI introduces a second cooperator to the same target. Sometimes a handler recycles templates for controlled buy procedures and accidentally copy-pastes details that do not match this case. Minor clerical errors are not systemic dishonesty, yet a series of them can loosen the government’s footing.
Safety concerns and protective orders
Informants face real risks. The defense bar recognizes that. Judges do too. Protective orders often limit who can see discovery that may reveal identity or addresses. Defense counsel typically negotiates terms that allow us to investigate without broadcasting sensitive details. That might mean redacting certain information from copies given to the client while allowing counsel to review unredacted material. Investigators working for the defense might be required to sign confidentiality acknowledgments.
This balancing act is not just about courtesy. A court is more inclined to order meaningful disclosures when the defense shows a track record of handling sensitive information responsibly. We keep the litigation focused on fairness, not on turning the courtroom into a referendum on the informant’s safety.
Cross-examination that jurors follow
When a case goes to trial, cross-examining an informant is a craft. Jurors tune out long excursions into minutiae. They respond to clear themes anchored to evidence. The incentive theme is basic but powerful. So is a timeline theme that highlights gaps where surveillance lost sight or recordings went silent. If you can build two or three clean through-lines, the rest of the cross can be short.
Tone matters. Juries often dislike bullies. A criminal defense attorney who seems to relish humiliating a struggling cooperator may lose sympathy. The better approach is clinical. Firm questions, tight control, no performative outrage. When impeachment lands, it should feel inevitable, not theatrical. If the informant has past convictions for dishonesty, that comes in if the rules allow, but it is rarely the main event. Jurors care more about whether this case’s story adds up than about a witness’s decade-old shoplifting case.
It helps to anticipate the rehabilitative move. Prosecutors often argue that informants provided verifiable details only an insider would know. If the defense has already shown that the same details were public, or were fed by handlers during debriefing, the punch lands softer. You want the jury to reach a point where they view the informant as a fallible tool rather than a truth-teller or a liar. From there, the reasonable doubt argument belongs to the gaps, not to labels.
Entrapment and predisposition
Not every informant case raises entrapment, but where it does, the groundwork must start early. Entrapment hinges on government inducement and the defendant’s lack of predisposition. Inducement is more than a mere opportunity. It can include repeated solicitation, appeals to sympathy, or extraordinary promises. Predisposition looks backward. Prior similar acts, readiness to commit, and quick acceptance of the criminal plan all affect the analysis.
The informant’s role sits at the core. Did they badger, coax, or escalate beyond what the target suggested? Did agents or the informant propose the crime first? Are there communications showing reluctance, and were those brushed aside? If the government used escalating offers, the money amounts and the timeline can matter. A person who says no five times and yes on the sixth when the price triples looks different than someone who jumps in without hesitation.
A seasoned criminal defense lawyer pairs entrapment with alternative arguments because juries hear it as an admission that something happened. If evidence is thin, the primary theme stays on proof failure, with entrapment as a secondary explanation. If recordings capture heavy government pressure, entrapment can move forward, yet you still preserve arguments about identification, quantity, and intent.
Motions that reshape the case
Many informant-driven cases undergo a change in posture after motion practice. A Franks hearing can narrow or knock out warrant-based evidence if material falsehoods or reckless omissions supported probable cause. A motion to disclose informant identity, even if only partially granted, can pry loose enough background to fuel impeachment. Motions in limine can limit suggestive terminology. For instance, asking the court to avoid calling the government witness a “confidential informant” and instead use “witness” can reduce the aura of official trustworthiness.
Chain-of-custody motions become more meaningful when much of the physical evidence originates with the informant. If there is a gap between the alleged buy and the lab submission, or if seals show signs of tampering, the defense has leverage. In firearm cases, the serial number history and handling logs are fertile ground. In drug cases, field test results kept out of evidence because of faulty kits can undermine the narrative around the arrest.
Plea leverage and charge valuation
Most criminal defense law firms manage risk as well as rights. When an informant is central, evaluation of plea options changes. If the informant’s availability is uncertain, or their credibility is frail, prosecutors may discount the case. The defense can use that to move for a resolution that strips enhancements or drops the highest counts. If the government has brick-and-mortar corroboration, the discount may be smaller. Even then, exposing procedural sloppiness can reduce appetite for trial.
Timing matters. Some offices extend better offers before disclosure orders force them to reveal sensitive material. Others wait until after key motions. A criminal defense attorney watches the calendar and agency culture. If a federal case is headed for a sentencing where the informant expects a reward in their own matter, the government might push trial to keep their cooperator’s assistance fresh. Negotiations can leverage that by offering a swift resolution that spares the witness.
Practical constraints on investigation
Defending against an informant’s claims requires legwork. Investigators interview neighbors, pull cell-site location information, re-create driving routes, and visit scenes at the same hour and lighting to test visibility. Budgets and court approvals set limits. Public defender offices and appointed counsel must justify expenses for expert analysis or extensive travel. Private criminal defense lawyers weigh client resources against marginal returns.
A detail that sounds small can make the allocation worth it. One case turned on whether the informant could have seen through a tinted storefront window at dusk. A twenty-minute test using a light meter and the same model of glass saved a client from a trial by putting doubt in the prosecutor’s file. Other times, the return is less tangible. Calling on an uncooperative witness to test whether they will confirm the informant’s presence might yield nothing during the first visit, only to produce a call back two weeks later when nerves settle.
Ethical lines
Criminal defense counsel must avoid crossing into intimidation or harassment. Contacting an informant directly when they are represented can violate ethics rules. Reaching out through an investigator is permissible, but the investigator must give accurate identity and purpose, and respect a witness’s refusal to speak. Protective orders add structure. Breaching them endangers clients and undermines credibility with the court. Experienced lawyers treat reputational capital as currency they will need when asking for difficult relief.
At the same time, counsel has a duty to investigate. That includes checking social media, prior testimony in other cases, and public records that reveal financial pressures or inconsistent stories. The line is not between aggressive and passive, but between lawful, professional persistence and tactics that make a judge recoil.
criminal defense counselHow firms organize for informant cases
A criminal defense law firm that often handles informant-heavy matters tends to systematize. Templates help, but not at the expense of clear thinking. Teams build a quick-reference matrix that tracks each controlled buy, the surveillance assets used, device IDs, the status of audio quality, and any anomalies. A second matrix guards against late discovery. It lists every promised item, who asked for it, and the date it arrived. Simple spreadsheets do the job better than memory.
Some firms keep a private database of frequent informants, compiled from public cases. That resource can flag reliability issues earlier than formal discovery does. Carefully used, it guides where to dig first, and it keeps the work humane. People do not turn into villains or saints because they became informants. Patterns help explain behavior, not condemn it.
When the informant never testifies
Not all informant cases end with the informant on the stand. The government may decide to try the case without them, relying on recordings, surveillance, and officer testimony. That choice triggers confrontation rights issues if the prosecution tries to introduce the informant’s out-of-court statements for their truth. Counsel should be ready to move to exclude those statements under hearsay rules and the Confrontation Clause. When only the officer relays what “the CI said,” many judges will keep that testimony out or limit it severely.
Even if the informant does not testify, their role still shapes the case. Jurors are aware that someone set events in motion. Defense counsel can point to the absence of the witness without inviting speculation about danger or threats. A straightforward comment during closing, noting that the person who supposedly witnessed key events was not called, invites jurors to ask why.
The emotional component
Clients often feel betrayed by informants who were friends or family. That emotion is real and heavy. A criminal defense lawyer’s job is to acknowledge it without letting it drive choices. Trials decided on anger tend to go badly. Trials decided on proof, gaps, and the government’s burdens go better. Counsel keeps clients focused on attainable goals. Getting audio suppressed because a device was used inside a home without proper consent is unglamorous work, yet it changes lives more reliably than venting at an informant.
Families, too, need context. They might want names and details that protective orders forbid. Clear communication about what can and cannot be shared builds trust. It also prevents accidental leaks that make judges skeptical of further defense requests.
The arc from suspicion to proof
Defending a case with a confidential informant is not a single tactic but a long arc. Early on, the questions are basic. Who is this person and why are they talking? As discovery comes in, the focus shifts to materials that anchor or undermine their story. Later, the work becomes trial craft: shaping cross, winnowing themes, and spotting the moment when a clean, narrow argument is stronger than a sprawling attack.
Criminal defense attorneys do not win because they dislike informants. They win when they persuade jurors that only evidence tested in daylight should decide liberty, and that an informant’s testimony, like any testimony, deserves scrutiny that fits its risks. In many cases, the government meets that standard, and the case resolves accordingly. In others, the scrutiny reveals gaps that no amount of incentive can fill. The difference comes from careful attention, steady pressure, and respect for the processes that protect everyone, including the accused and the informant.
The work can be tedious. It can also be urgent and high consequence. When handled with discipline, it reminds the courtroom that fairness is not a slogan. It is a checklist, a timeline, a chain of custody, an audio timestamp, a negotiated protective order, a cross that stays within the lines, and a verdict built on what holds up, not what is convenient to believe. That is how criminal defense counsel handles confidential informants, case by case, detail by detail, until the truth that can be proved is the truth that counts.