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December 1990 CRIMINAL INFORMANTS: AN ADMISTRATOR'S DREAM OR NIGHTMARE? By Harry A. Mount, Jr. Special Agent FBI's Newark, New Jersey, Field Office Informants expose crimes that otherwise may go undetected. When properly used and controlled, they provide information that improves police efficiency, assists in the apprehension and prosecution of criminals, and sometimes even prevents crimes from taking place. However, to use informants effectively, agencies must establish and maintain strict, written departmental policies on handling informants. Even when operating under tight controls, informants can go bad quickly. When they do, they create significant legal and public relations problems. Law enforcement agencies that intend to use informants extensively must also be willing to defend publicly this decision. Fortunately, this is not difficult because the use of informants to solve or prevent crime is on solid legal ground. Judge Learned Hand, one of America's most famous jurists, observed: "Courts have countenanced the use of informants from time immemorial; in cases of conspiracy, or in other cases when the crime consists of preparing for another crime, it is usually necessary to rely on them or upon accomplices because the criminals will almost certainly proceed covertly." (1) As early as 1650, British Chief Justice Hale encouraged criminals to cooperate with the law by rewarding them for giving evidence against their accomplices. Hale established an arrangement that he called a "Plea of Approvement," which offered arrested criminals immunity from prosecution, or at least a reduced sentence, if they provided information on crimes that they knew about. (2) More than 300 years later, law enforcement's use of informants is accepted by Americans, who have become familiar with the practice. The media constantly run stories about sting operations, protected witnesses, and paid sources. They know that the mystery associated with these individuals ensures audience interest and widespread attention. In fact, Americans are sensitized to informant use by the entertainment media. Covert meeting sites, the danger, and the air of anonymity portrayed on television and in movies all add an element of suspense that engenders public understanding and acceptance of informant use by both fictional and real detectives. JUSTIFYING AN INFORMANT PROGRAM Yet, how does a law enforcement agency justify paying for information? Don't taxpayers already pay for police protection? Legislators and ordinary citizens frequently pose these questions, and there is but one answer. Simply stated, using informants is cost-effective. Informants provide intelligence, insight, and information that lead to arrests and convictions. Informants allow a law enforcement agency to expend its personnel on activities that have a high likelihood of success. For example, because of information provided by informants, arrest teams can determine where suspects can be found, how heavily armed they are, and who they are with. Some informants help investigators to obtain evidence of criminal wrongdoing, or through the use of informants, investigators can record actual criminal conspiracies on tape through court-ordered electronic surveillance. Good informants keep people from being harmed, evidence from being destroyed, and potentially explosive and dangerous crimes from taking place. As an important byproduct, proactive investigations often increase the efficiency and morale of sworn investigative personnel. ESTABLISHING AN INFORMANT PROGRAM A law enforcement agency that wants to have an effective, controlled informant program must encourage its sworn personnel to develop and maintain a professional attitude toward informants. One of the first steps that an agency must take in establishing a professional informant program is to convince its investigators that informants are not of questionable character, unworthy of respect. In reality, many informants who provide assistance to law enforcement are not criminals. Many hold responsible positions in public agencies and private businesses. Many are citizens motivated by personal antipathy to criminal conduct that they see around them. A few cooperate because they enjoy the cops-and-robbers excitement that goes along with solving crimes. Some are seeking revenge for professional or personal affronts, while others just trade information for money. Citizens have an obligation to report crime. However, no officer seriously expects citizens to live up to that obligation on a routine basis. (3) Fear of being killed, embarrassed, badgered, losing time from work, or of being inconvenienced work against citizens volunteering information about a crime. Therefore, law enforcement agencies must use informants to take the place of ordinary citizens who refuse to get involved. In fiction, as in real life, investigators often refer to informants in less than polite terms. Officers must understand that the attitude behind such terminology stands in the way of a healthy relationship between an investigator and a source. These personal feelings alienate people who could provide positive information that would solve crimes. Use of derogatory terms even turns off the "professional" paid informant. Consequently, departments should consciously discourage the practice of using derogatory terms, both on and off the job. A professional attitude toward informants does not just evolve. Law enforcement officers must be trained to cultivate a nonjudgmental frame of mind. Agencies must design both basic and advanced schooling that helps each officer to overcome the simple, but deeply ingrained, prejudice that is associated with informing. There is no doubt that Americans believe that telling tales on others is wrong. From childhood, they are taught not to tattle on brothers and sisters, classmates, or friends. Parents, teachers and clergymen constantly reenforce the concept. Even some law enforcement professionals believe that it is wrong to "tell on" another person, although they realize they need the information provided by informants to develop cases and apprehend criminals. Frequently, they even admire those who refuse to talk. Consequently, when law enforcement personnel work to develop informants, they are going against ingrained habits. The only way around the conflict is to train personnel, formally and informally, to view the use of informants as a critically important law enforcement technique. Once investigators overcome their reluctance to nurture this kind of confidential alliance, they find that developing informants is not too difficult and soon realize that using informants means controlling informants. However, the alert agency must recognize that administrative controls are necessary to run an effective informant program. ADMINISTRATIVE PROCEDURES Law enforcement administrators must establish and maintain several areas of strict control. Generally, they must: 1) Protect an informant's identity 2) Ensure information is recorded in files 3) Disseminate information to appropriate personnel, while simultaneously guarding the information from general perusal 4) Involve mid-level managers as overseers of informant operations 5) Employ alternate informant handlers 6) Develop a payment system that calls for accurate accounting of all monies paid to informants. Protect the Informant's Identity Only those with a need to know should be advised of an informant's identity. In practical terms, this means investigators and their alternates who work closely with the source. The squad supervisor or first-line manager should be encouraged to meet the informant so that the source knows that there are people in authority who support the program and so that the manager has a general "feel" for the informant. The person who controls the informant file room must also know the identity of an informant in order to handle the filing and other paperwork. These employees should be the only people who routinely handle informant information and who need to know the informant's identity. To ensure secrecy, informants should have code numbers and code names assigned to them. These take the place of the source's real name on all documents and reports, and also in personal conversations. Any information provided by the source must be documented and recorded using code numbers and code names. The files created must be maintained in secure rooms and access to them must be strictly controlled by an employee specifically assigned to control access. Only the informant's handler or alternate handler and the immediate supervisor should be allowed to examine those files routinely. Top management should have access to them, but only when necessary. A daily record that lists everyone who enters the secure file room should also be maintained. This control is not implemented to create a bureaucratic roadblock, but to protect sources by limiting the number of people who know their identities. Institutionally, it also reenforces the importance of protecting informants' identities. Record Information Ultimately, the intent of every investigation is prosecution, which requires maintaining records and files. Information may be the informant's stock-in-trade, but that is only the starting point for law enforcement officers. Paperwork allows prosecutors to obtain warrants or to put together cases that will be tried in court. Refusing to identify sources except by their code names frequently causes resentment, both inside and outside the department. Regardless, unless sources are scheduled to testify in open court, there is no reason for anyone to know informant identities. (4) Agencies should try to establish how reliable its sources are, while at the same time legally resisting any exposure of the their identities. Disseminate Information Dissemination is the key to making informant operations successful. Files full of facts are worthless unless someone uses them to focus an investigation on specific people, obtain search and arrest warrants, or support an affidavit for electronic surveillance. Informant handlers must be taught to believe that information without action is worthless. Too often, informant handlers believe that they have done their jobs by developing knowledgeable sources who keep them individually abreast of the latest inside criminal information. Unfortunately, handlers may become afraid of revealing their sources, and so, they keep the information to themselves. Computers with megabytes of criminal data sit in many squad rooms. However, these computer systems are equally useless unless someone takes the information and uses it, drawing the equations that link person to person, incident to incident, and crime to crime. Facts must be shared and opinions solicited. Only then does an informant program pay off. Therefore, the agency that uses informants productively develops standard report forms and disseminates information to those authorized to use it. Specific paperwork and dissemination procedures must be adopted, and officers must understand that information cannot be shared outside standard channels. The department must depend on the code names of the sources to shield informant identities from the casual or uninitiated reader. A good informant handler uses judgment and discretion to disseminate only those facts that will advance an investigation without identifying the source. Involve Mid-Level Managers Each department or agency should have mid-level managers directly overseeing informant operations. This is necessary because all too often, a close, symbiotic relationship develops between an informant and informant handler. This type of relationship leads to a corresponding loss of objectivity on the part of the informant handler. A mid-level manager who has no immediate personal stake in the operation can step in to enforce departmental procedures impartially, when necessary. Employ Alternate Informant Handlers To assist in maintaining objectivity, each department or agency also should assign two investigators to each informant. One is the primary informant handler, while the second acts as an alternate. The alternate handler should witness every payment for services and expenses, attend most debriefing sessions, and contact the source any time the primary contact is unavailable. Often, there is resistance to this policy because investigators object to another person being involved. Many believe the alternate causes friction and depersonalizes the affiliation. However, the alternate can both sympathize with the informant and remain objective and slightly detached. This relationship helps to maintain a balance and perspective that fosters control. Develop Strict Payment Procedures In the past, investigators paid informants nominal amounts of money. This is no longer the case. Many police agencies disburse substantial amounts of money to sources, and consequently, expect to be able to direct their activities. This requires accountability. Payments must be witnessed, receipts obtained, and cumulative records maintained. Generally, informants should be paid on a C.O.D. basis, not on a regular schedule. Also, only when informants provide valuable information should they be paid. There should be no standard pay scale for information. The informant handler must consider the value of each item and then recommend a specific payment. Many factors affect the amount of a payment. What kind of information is provided? Is the source placed in any real danger? What is the status of the case? How long has the source provided information? How reliable is the source? Normally, the informant's handler should suggest an appropriate payment and an immediate supervisor should authorize it. CONCLUSION Working informants is fulfilling. Investigators who use informants effectively can be reasonably sure that they are going to develop cases against key criminals. Having someone report on the daily successes and frustrations of criminals helps investigators to gather and maintain evidence that leads to apprehensions and prosecutions. U.S. District Court Judge Stephen Trott once addressed U.S. Government prosecutors on using informants to try cases. In a supplement to that lecture, he noted, "Notwithstanding all the problems that accompany using criminals as witnesses...the fact of the matter is that police and prosecutors cannot do without them period." FOOTNOTES (1) United States v. Dennis, 183 F.2d 201 (2d Cir. 1950). (2) E. Cherry and C. Molton, "Police and the Criminal Informant," unpublished dissertation for the Advanced Course 3/80 Project, Metropolitan Police Detective Training School. (3) James Reese, "Motivations of Criminal Informants," FBI Law Enforcement Bulletin, May 1980, p. 24. (4) There may be occasional exceptions to this rule. For example, a judge may require an "ex parte, in camera" hearing to determine the source's reliability and accuracy of the information provided. Prosecutors may want to talk to a source before they seek warrants or subpoenas.