In many Massachusetts drug arrests, the police will claims as a basis for obtaining a search warrant of a residence that a confidential informant provided information that the residence was being used for drug trafficking or distribution.

As a Massachusetts drug crimes lawyer, it is sometimes necessary to file a motion to require the Commonwealth to disclose the identity of the informant in order to prepare a defense to the charges. In some cases, an informant may provide relevant information for the defense while in other cases a court order for disclosure may force the Commonwealth to dismiss the case rather than to disclose the informant’s identity.

In Commonwealth v. Shaughessy, 455 Mass. 346 (2009), the Massachusetts Supreme Judicial Court held that in order to obtain disclosure of the identity of a confidential informant a defendant has the burden of showing that the informant would provide information that is material to the defense. If this showing is made, then the privilege can be overcome. The purpose of the privilege is to assist the police in obtaining information without the informant fearing retribution as a result of cooperating with the police. This privilege has limitations under the Sixth Amendment Confrontation Clause of the United States Constitution. The leading case on the issue of disclosing confidential informants in drug cases is the United States Supreme Court case of Roviaro v. United States, 353 U.S. 53 (1957).

Recently, the National Association of Criminal Defense Lawyers submitted an amicus brief to the Court of Appeals of Maryland in the case of Elliot v. State on the issue of whether the Maryland court improperly denied the defendant access to the identity of the confidential informant. Click here to read the brief of the National Criminal Defense Lawyers.

In Elliot, the defendant argued that there was no need for the privilege as the identity of the informant was already known and secondly that disclosure of the informant was necessary as a matter of fairness as the informant would potentially be a material witness for the defendant. In defending the charge of possession of drugs with the intent to distribute, the defendant in Elliot claimed that the informant entrapped the defendant and asserted as his defense that he had no knowledge that there were drugs in his car. Clearly, cross examination of the informant may provide strong evidence for the defendant in providing a motive for the informant to frame the defendant in attempt to gain favor with the police; further, disclosure of the informants identity would allow the criminal defense attorneys to gain other valuable discovery, such as the criminal record of the informant to uncover a motive to lie on the part of the informant.

As a Massachusetts criminal defense lawyer, I believe that the Maryland Court of Appeals should reverse the lower court’s decision and its decision may provide valuable precedent in defending Massachusetts drug crimes. To read the decision of the Maryland Court of Appeals in Elliot v. State click here.

Attorney DelSignore is a member of the National Criminal Defense Association and is an experienced Massachusetts criminal defense lawyer defending Massachusetts drug crimes. Having successfully defended drug crimes alleging possession with intent to distribute, school zone violations and drug conspiracies, attorney DelSignore can help you prepare for the court processes involved including issues of bail, preparing motions and defending the case at trial. Call 508-455-4755 or 781-686-5924 for a free consultation.