Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page i
TABLE OF CONTENTS
OVERVIEW: CI GUIDELINES OVERVIEW-1
CHAPTER 1: INTRODUCTION AND DEFINITIONS 1-1
A. The Prosecution’s Need for Cooperating Individuals (CIs) 1-1
B. Purpose of this Manual 1-1
C. Definition of a Cooperating Individual 1-2
D. Definition of Benefit 1-3
E. CI Forms, Agreements, and Pleadings 1-3
CHAPTER 2: ISSUING CASES INVOLVING COOPERATING INDIVIDUALS 2-1
A. Issuance when the Police Will Disclose 2-1
B. Issuance when the Police Will Not Disclose 2-1
C. When the Police Agree to Disclose but Don’t 2-2
CHAPTER 3: COOPERATING INDIVIDUALS AS WITNESSES AND DISCOVERY
ISSUES 3-1
A. Requirement and Scope of Inquiry Regarding the Cooperating Individual 3-1
B. Recommended Areas for Inquiry 3-2
C. Disclosing the Identity of a Cooperating Individual 3-5
D. Defense Contact With a Cooperating Individual 3-5
CHAPTER 4: CONTACTS WITH COOPERATING INDIVIDUALS REPRESENTED BY
AN ATTORNEY 4-1
A. Legal and Ethical Restrictions 4-1
B. Required Approval prior to Contacting Represented CI/Defendant 4-2
C. Required Admonition for All Represented Cooperating Individuals 4-3
D. Avoiding Contact with CI/Defendants about Pending 4-4
E. Contact Between Police and Represented Cooperating Individuals 4-4
Contents
Page ii Table of Contents June 1997
F. Exceptions to the Attorney Communications 4-5
CHAPTER 5: BENEFITS REQUESTED BY COOPERATING INDIVIDUALS AND CO[1]DEFENDANTS 5-1
A. Impact of Benefits Promised by Police 5-1
B. Benefits Requested by Police Agencies 5-2
C. Authorization of Benefits 5-3
D. Benefits Requested by Cooperating Individuals During Interviews 5-6
E. District Attorney Documentation/CIBR 5-7
CHAPTER 6: USE AND CONTROL OF COOPERATING INDIVIDUALS 6-1
A. Interviewing Cooperating Individuals or Codefendants 6-1
B. Use of an Agreement for the Initial 6-2
C. Factors to Consider with Potential Cooperating Individuals 6-3
D. The Cooperating Individual (CI) Agreement 6-6
E. Written Instructions for the Cooperating Individual 6-8
F. Witness Protection Programs 6-8
G. The Use of In-Custody Informants 6-9
CHAPTER 7: MOTIONS TO DISCLOSE THE COOPERATING INDIVIDUAL 7-1
A. Defendant’s Burden to Obtain Disclosure 7-1
B. Overcoming Defendant’s Prima Facie Showing 7-2
C. In Camera Hearings 7-3
D. Sanction for Nondisclosure 7-4
E. Motions to Disclose a Cooperating Individual’s Address 7-4
CHAPTER 8: IMMUNITY 8-1
A. Introduction 8-1
B. Use vs. Transactional Immunity 8-1
C. Authority to Seek a Grant of Immunity 8-2
D. California’s Immunity Statute (Pen. Code, d 1324) 8-3
E. Procedure for Obtaining Immunity 8-4
F. Informal or “Hip-Pocket” 8-6
G. Immunity in Misdemeanor Cases 8-7
H. Drafting the Grant of Immunity 8-7
APPENDICES
A. Cooperating Individual (C/I) Benefits Record
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page iii
B. Cooperating Individual Status Report
C. Cooperating Individual Worksheet
D1. Agreement Regarding the Initial Meeting between Potential Cooperating Individual
(PCI) and Prosecution
D2. Agreement Regarding the Initial Meeting between Potential Cooperating Individual
(PCI) and Prosecution
E. Factors To Consider with Potential Cooperating Individuals (PCIs)
F. Cooperating Individual (CI) Agreement
G. Cooperating Individual (CI) Regulations
H1. Sealed Declaration in Support of Order for Release of Defendant; Order for
Release of Defendant
H2. Sealed Declaration in Support of Order for Release of Defendant; Order for
Release of Defendant
I1. Sealed Declaration in Support of Bail Revocation
I2. Sealed Ex Parte Order
J. Petition for an Order Compelling Testimony of a Witness
K Order to Show Cause
L Waiver of Hearing
M Order Requiring Witness to Answer Questions
N1 Grant of Immunity; Letter Agreement
N2 Grant of Immunity; Letter Agreement
CI GUIDELINES
(2006 revision of CI Guidelines published in 1997 CI Manual)
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The following CI Guidelines are mandatory statements of policy that must be learned
and applied by every Deputy District Attorney (DDA) and District Attorney Investigator
(DAI). Discussion of related material may be found within the CI Manual in the chapters
referenced below:
Chapter 1: INTRODUCTION AND DEFINITIONS
CI Guideline 1: Responsibility to know the law: DDAs and DAIs are responsible for
knowing the law involving discovery obligations, and protecting privileged information
regarding confidentiality of official information and identity of CIs (PC 1054 and
Evidence Code sections 1040, 1041, and 1042).
CI Guideline 2: Limited Exception Authority: Exceptions to these guidelines must be
approved by the District Attorney, Assistant District Attorney, Chief Deputy District
Attorney, or Division Chief.
CI Guideline 3: Do not confirm or Deny CI: The District Attorney’s Office does not
publicly discuss the topic of CIs. In every instance where a member of this office is
asked about the status or existence of a CI, that member shall respond that the DA’s
Office does not confirm or deny the existence of CIs or CI Information.
CI Guideline 4: CI Defined: A Cooperating Individual is a person who provides
information or other cooperation to law enforcement in exchange for a direct benefit to
CI or vicarious benefit to another person.
Chapter 2: ISSUING CASES INVOLVING COOPERATING INDIVIDUALS
CI Guideline 5: Issuing Cases with CI involved: No criminal case should be filed in
which the disclosure or testimony of a CI is mandated by law or essential for successful
prosecution when the CI or agency submitting the case insists on CI remaining
confidential.
Chapter 4: CONTACTS WITH COOPERATING INDIVIDUALS REPRESENTED BY AN
ATTORNEY
CI Guideline 6: Mandatory report for CI contact: A written report shall be generated
regarding any contact by DDA, DAI, or their agent with a CI known to be represented by
counsel.
CI Guideline 7: Authorization to contact represented CI: No DDA or DAI will
communicate with, or refer other law enforcement to communicate with, any CI who the
DDA or DAI knows is represented by an attorney on any criminal matter without the
CI Guidelines (May 2006) Overview-1
approval of their own Division chief, and the DA Division Chief of the division
prosecuting the CI.
CI Guideline 8: Division Chief duties before authorizing contact of represented CI:
No Division Chief will authorize or direct any DDA, DAI or other law enforcement
officer to communicate with, or refer other law enforcement to communicate with, a CI
who the Division Chief knows is represented by an attorney on any criminal matter, until
the Division Chief has reviewed the completed “CI Worksheet”, the “Factors to
Consider”, and all applicable CI Guidelines (samples in CI Manual Appendix).
CI Guideline 9: Multiple (Other) Case Admonition: Before engaging in a
conversation with a represented CI about matters other than those on which the CI is
represented, the following admonition must be read:
Admonition:
Mr./Mrs._______________, I am here to talk to you only about case(s) 1, 2, 3,
etc. (identify subject of conversation). I will not talk to you about case(s) 4, 5, 6, etc.
(specifically identify all known cases on which defendant has an attorney) or any
other case on which you have an attorney.
If you are trying to give us information or assistance in the hopes of receiving a
benefit on your case(s) on which you have an attorney, I will not discuss even the
possibility of a benefit without the consent and participation of both the prosecutor
and your attorney on your case(s). If you try to talk to me about these case(s), this
conversation will be stopped. Do you understand? (Document Response from CI.)
The admonition shall be read whenever you are talking to:
1. An in-custody witness, defendant or victim; or
2. When you know or suspect CI may be anticipating the potential for benefits; or
3. Any person known to be represented by counsel whether in or out of custody.
When it is learned during a field investigation that the person is represented by counsel,
the content of the above admonition must be conveyed.
The admonition shall be tape recorded, or written acknowledgment of the admonition
obtained, whenever possible or practical.
CI Guideline 10: Defense Attorney Permission required: DDAs and DAIs shall not
engage in any discussions with a represented CI concerning the CI’s pending criminal
case(s), unless done with the knowledge and explicit permission of CI’s attorney. The
permission should be in writing or otherwise recorded (i.e., audio or video-taped). A
progress report note is insufficient. (see “Initial Meeting Agreement (Defense Attorney
Waived)” in CI Manual Appendix)
CI Guideline 11: CI does not want his Attorney to know: If a represented CI
expresses the desire to discuss his case without the knowledge or participation of his
attorney, DDAs and DAIs must obtain approval of the Division Chief of the division
prosecuting CI prior to any such discussion.
CI Guidelines (May 2006) Overview-2
Chapter 5: BENEFITS REQUESTED BY COOPERATING INDIVIDUALS
CI Guideline 12: “Lieutenant or Above Letter”: The District Attorney’s office will
not accept any oral request by law enforcement agencies for benefits involving a
defendant on a pending criminal case. All agency requests for benefits must be in
writing, and personally approved in writing by that agency’s command level supervisor;
i.e., lieutenant or above, or ASAC if federal law enforcement. (see, “Lt or Above letter”
samples in CI Manual Appendix).
CI Guideline 13: CI Benefits must be approved by DA Division Chief: No DDA or
DAI, or other member of the District Attorney’s office shall assist in offering or
facilitating any CI benefit which has not been previously approved by the Division Chief
of the division handling the investigation or prosecution of CI.
CI Guideline 14: Violent CIs must be approved by Chief Deputy or above: No
violent offender shall be used as a CI without the approval of the District Attorney,
Assistant District Attorney, Chief Deputy District Attorney, or the Division Chief of the
Division prosecuting the CI. A violent offender is a person charged with a crime of
violence, has a violent criminal history, or is possibly a danger to the victim or others.
CI Guideline 15: Striker CIs must be approved by Division Chief: No member of the
District Attorney’s office shall interview, discuss, offer, or agree to any benefit impacting
a CI who is a “Striker” (PC 667(b)-(i)) in exchange for cooperation without the consent
of the District Attorney, Assistant District Attorney, Chief Deputy District Attorney, or
the Division Chief of the Division prosecuting the CI.
CI Guideline 16: No payment for CI testimony: Notwithstanding the language of
Penal Code section 4001.1, no employee of the District Attorney’s office shall authorize
or make the payment of money in exchange for in-custody CI testimony.
CI Guideline 17: CI Benefits Disclosure: Benefits received by the CI in exchange for
the CI’s cooperation shall be communicated to the defense as required by law.
CI Guideline 18: CIBR, Worksheet, Status Report: For every CI, a Cooperating
Individual Benefits Record (CIBR), a Cooperating Individual Worksheet, and a 60 day CI
Status Report will be completed and kept up to date (see samples in CI Manual
Appendix).
CI Guideline 19: CI location and Review: The original of all forms will be maintained
in a confidential file in the District Attorney’s Special Operation’s Division. Numbered
copies of the Cooperating Individual Agreement and Cooperating Individual Regulations
forms will be made available to the CI’s attorney and the case agent using CI or CI
handler upon request.
Chapter 6: USE AND CONTROL OF COOPERATING INDIVIDUALS
CI Guideline 20: Initial “Free Talk” Meeting must be taped and documented: All
initial meetings between DA personnel, or other law enforcement referred by DA
personnel, with suspects, defendants, or other persons seeking benefits for themselves or
others in exchange for cooperation with law enforcement must be documented with the
CI Guidelines (May 2006) Overview-3
“Initial Meeting Agreement” (see sample in CI Manual Appendix), and audio or video
tape recorded.
CI Guideline 21: CI Agreements must be in writing: All agreements with CIs shall
be in writing and approved by the Division Chief of the Division making the agreement
or the Division likely to prosecute the case in which the CI is cooperating (see sample in
CI Manual Appendix).
CI Guideline 22: CI’s Attorney must agree to Cooperation Agreement: A CI
agreement with a represented CI shall only be made with the full knowledge and consent
of the CI’s attorney. See also CI Guidelines 11, and 2.
CI Guideline 23: Defendant CI must plead Guilty to Cooperate: Cooperation
agreements with CIs must include a CI plea of guilty or other settlement of all of CI’s
own cases at the time of the agreement. CI’s own cases not included in the agreement
must be specifically excluded in the agreement. Unresolved and pending prosecutions
against CI shall not be continued as part of cooperation agreements.
CI Guideline 24 : CI Benefits disclosed to Defendants: Pursuant to Penal Code
section 1127a(c), trial DDAs shall file a written statement with the court, with a copy
provided to the defendant or defense counsel prior to trial, setting out any and all
consideration promised to, or received by, the CI in exchange for CI’s testimony.
CI Guideline 25: CI Benefits disclosed to Designated Victims: Pursuant to Penal
Code section 1191.25, trial DDAs shall give notice to the victims of the in-custody CI of
the intent to provide the CI with any benefits
Chapter 8: IMMUNITY
CI Guideline 26: Immunity must be approved by Division Chief: All promises of
immunity must be approved by the Division Chief of the Division prosecuting the CI or
witness (see samples in CI Manual Appendix).
CI Guidelines (May 2006) Overview-4
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 1-1
INTRODUCTION AND DEFINITIONS
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A. The Prosecution’s Need for Cooperating Individuals (CIs)
Generally, there are few problems where information is gathered from truly anonymous informants or
citizen informants. These informants volunteer their information fortuitously, openly, and through
motives of good citizenship.1
Judges and juries usually believe anonymous or citizen informants.
Problems sometimes arise, however, when law enforcement officers find it necessary to base some
or all of their investigations on evidence obtained from cooperating individuals (CIs) who themselves
have been involved in, or are close to, or are charged with criminal activity. Because our justice
system requires that a witness in court have personal knowledge concerning those facts about which
he or she testifies, it follows that many CIs are criminals themselves or are closely associated with
them.
Jurors often do not like people who sell out or rat or snitch on their friends, even if the friend’s
conduct is far more serious than the CI’s. For this reason, jurors sometimes favor defense arguments
of entrapment or outrageous police conduct when a CI plays a key role in the case, even if those
arguments lack any basis in fact. Thus, prosecutors need to make the point that successful
prosecutions oftentimes require the use of CIs.
In the words of Judge Learned Hand:
“Courts have countenanced the use of informers 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.”2
Snitches, informants, co-conspirators and accomplices therefore are indispensable weapons and
witnesses in a prosecutor’s arsenal and are necessary to protect the community against criminals.
B. Purpose of this Manual
Chapter
1
Page 1-2 Introduction and Definitions June 1997
This manual provides Deputy District Attorneys and District Attorney Investigators with an overview
of the many and complex problems often found in cases where cooperating individuals have given
information or may be called as witnesses. More importantly, principles and guidelines are presented
for handling CI problems.
Many of the more crucial principles are presented in this manual as CI Guidelines. The first such
guideline is:
CI Guideline 1: Deputy District Attorneys and District Attorney Investigators are
responsible for knowing the law involving confidentiality of official information and identity
of CIs, and shall be familiar with Evidence Code sections 1040, 1041, and 1042.
While the manual should be a deputy’s first resource for handling CIs, all CI matters must be
discussed with a division chief and, if needed, guidance and approval of decisions may be obtained
from either the District Attorney, the Assistant District Attorney, or the Chief Deputy District
Attorney.
CI Guideline 2: Exceptions to the established guidelines set forth in this manual should be
addressed to, and approved by the District Attorney, Assistant District Attorney, Chief
Deputy District Attorney, Division Chief, or the Chief of the Bureau of Investigations.
Cases involving undercover CIs have often generated negative media coverage. This coverage has
frequently involved allegations of CI mishandling or manipulation of law enforcement personnel by
CIs. There is only one way to respond to questions from the media, or the general public, about
confidential CIs:
CI Guideline 3: In every instance where a member of this office is asked about the status
or existence of a CI, that member of the District Attorney’s Office shall respond
specifically: The District Attorney’s Office does not publicly discuss the topic of CIs, unless
otherwise directed by a court.
If a case has a CI problem that is likely to be the subject of press coverage, deputies handling the
case should immediately inform the District Attorney through their division chief. Above all, any
deputy encountering a CI problem should deal with it as carefully as if handling a vertically prosecuted
case. All actions should be in accordance with office guidelines and be well documented.
C. Definition of a Cooperating Individual
Although the terms informer and informant are usually used in the statutes, published cases, and in
common parlance, the broader term of cooperating individual will be used in this manual. For the
purpose of the discussions that follow, a cooperating individual is defined as follows:
CI Guideline 4: A cooperating individual (CI) is any person who knowingly provides
information to law enforcement related to another’s criminal activity, whose motivations for
doing so are other than that of an uninvolved witness, victim, or private citizen primarily
acting through a sense of civic responsibility, and who, as a general rule but not necessarily,
expects some form of benefit or advantage for himself, herself, or another person, in return.
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 1-3
Cooperating individual includes all of the following:
· Active unpaid CIs - These are anonymous or citizen informants who frequently provide
information or volunteer their efforts to police agencies, usually without any form of
compensation.
· Paid CIs - A paid CI, often referred to as a “mercenary” CI, is an individual who receives money
from law enforcement in return for information regarding criminal activity.
· Defendant CIs - A defendant CI is a cooperating individual who is or might be prosecuted. The
CI may provide information about criminal activity in which he was or is engaged or may simply
identify others involved in unrelated criminal activity.
· In-Custody CI - An In-Custody CI is an inmate in custody who provides information or testifies
about matters another defendant told him while both were in custody. The testimony of such a CI
is tightly controlled by Penal Code sections 1127a, 1191.25 and 4001.1 which are discussed in
chapter 6, section H, of this manual.
D. Definition of Benefit
CI benefits include any consideration or advantage the CI was offered, promised, or received in
exchange for the information provided. For the purpose of the discussions that follow, a benefit is
defined to include any of the following, whether for the benefit of the CI or another person at the CI’s
request:
· Financial - Monetary payments of any kind, including, but not limited to, room and board or use of
an automobile;
· Custody - Leniency shown in arrest or booking, requesting appropriate bail, or contesting the
source of the bail (Pen. Code, § 1275.);
· Charging - Leniency shown in filing appropriate charges or enhancements;
· Delay - Delay in arraignment or other court dates;
· Disposition - Reduction of charges, period of custody or other condition of probation, or sentence,
including favorable input by a deputy or law enforcement;
· Relocation - Relocation of the CI or the CI’s family; or
· Immunity - Use or transactional immunity, formal or informal; or
· Intervention - Favorable action with other governmental agencies, such as IRS, INS, Child
Services, or civil courts, or private interests, such as employers.
This list is not exclusive. Other acts or objects may also become benefits.
E. CI Forms, Agreements, and Pleadings
Page 1-4 Introduction and Definitions June 1997
The appendix contains a number of forms, agreements, and pleadings that conform to the guidelines
set forth in this manual. These documents are also available in electronic form on all District Attorney
LANs. The forms may be opened in Microsoft Word and either printed and filled in by hand, or filled
in on screen and then printed. Simply by pressing the [F11] key, Word will move the cursor to each
place where names, dates, or other information should be inserted. Some pleadings offer choices in
the language which are enclosed in brackets [ ]. All documents can be modified to meet individual
needs.
The appendix documents may be found in the “CIMANUAL” directory in the path
“X:\WAP\Office97\Word.” The filenames correspond to the appendix letter. For example,
“AppendA.Doc” is the “Cooperating Individuals Benefits Record.” A listing of the appendices may be
found at the end of the table of contents.
Endnotes
1. People v. Ramey (1976) 16 Cal.3d 263, 268-269; People v. Smith (1976) 17 Cal.3d 845, 850.
2. United States v. Dennis (2nd Cir. 1950) 183 F.2d 201, at p. 224.
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 2-1
ISSUING CASES INVOLVING COOPERATING INDIVIDUALS
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In deciding whether to issue a case, the most common problem is disclosure of the CI’s identity. If a
CI was used during an investigation, prosecutors should assume a disclosure motion will be filed
asserting the most plausible, reasonably foreseeable grounds for disclosure of the CI’s identity. A
determination should be made at issuance whether the police will disclose the identity of the CI, and
under what circumstances. This determination should be recorded in the case progress notes, which
are not discoverable. The case should then be reviewed to determine whether a defense motion to
disclose can be successfully opposed as a matter of law, or by the use of an in camera hearing under
Evidence Code section 1042(d). (Motions for disclosure of the CI’s identity are discussed in Chapter
VIII, and sample points and authorities are included in AUTOBRIEF.)
A. Issuance when the Police Will Disclose
If the police are willing to disclose the CI’s identity if ordered by a court, the case may be issued. If
issued, the investigating officer should be informed to keep track of the CI’s whereabouts including
current work and residence addresses and telephone numbers.1 Do not enter the CI’s name in
JURIS.
The timing of the disclosure must also be considered. Ordinarily, disclosure should not be made until
the CI will be called as a witness, or until the latest date permitted under the rules of discovery, or
until a court orders his identity disclosed. Thus, if the defendant enters a guilty plea, it may be
unnecessary to disclose the CI’s identity even where officers are willing to disclose. Agency
notification and CI safety issues are discussed in chapter 3, section C.
B. Issuance when the Police Will Not Disclose
CI Guideline 5: No criminal case should be filed in which the testimony of a CI is essential
for successful prosecution when the CI insists on remaining confidential as a condition of
any cooperation with law enforcement.
If the police state they will not disclose the CI’s identity, even if ordered by a court to do so, and
assert a privilege to withhold such information under Evidence Code section 1041, the following
principles apply in deciding whether to issue the case:
Chapter
2
Page 2-2 Issuing Cases Involving CIs June 1997
· If it appears unlikely the court will order disclosure of the CI’s identity, the case should be
issued. This is most likely when the CI merely pointed the finger of suspicion at the defendant,2
or
where the CI provided information used merely for probable cause to search.3
In these
circumstances, the investigating officer should be informed that the CI may have to be produced
for an in camera hearing.
· If the police agency indicates the CI’s identity will not be disclosed, but the failure to disclose
would not result in dismissal of the entire case, all counts should be issued. In this situation, a
court may dismiss some but not necessarily all of the charged counts.
· If it appears certain that disclosure will be ordered by the court following an in camera hearing
and the only appropriate sanction for nondisclosure would be dismissal of all charges, the case
should not be issued. (See chapter 7, section C, regarding the disclosure standard after an in
camera hearing.) This might occur where the CI (1) was an eyewitness to, or an actual
participant in, the charged crime(s),4
or (2) when he might otherwise provide evidence favorable
to the defendant.5
Such rejections must be approved by a division chief.
· If the CI’s identity is ordered disclosed but the CI cannot be found, the police must document
efforts made to keep track of the CI and to relocate him. Cases have been dismissed because the
prosecution refused to reveal the CI’s address.6
(See chapter 7, section E, regarding motions to
disclose a cooperating individual’s address.)
C. When the Police Agree to Disclose but Don’t
If the police initially agree to disclose the identity of the CI but do not do so, the deputy handling the
case should immediately bring this to the attention of his or her division chief. If a motion to dismiss is
granted under these circumstances, it should be documented and reported to the District Attorney
through the division chief.
Endnotes
1. Twiggs v. Superior Court (1983) 34 Cal.3d 360, 375.
2. People v. Wilks (1978) 21 Cal.3d 460, 469.
3. Theodor v. Superior Court (1972) 8 Cal.3d 77, 88.
4. In re Tracy J. (1979) 94 Cal.App.3d 472; People v. Goliday (1973) 8 Cal.3d 771.
5. People v. Hardeman (1982) 137 Cal.App.3d 823, 829.
6. See Miller v. Superior Court (1979) 99 Cal.App.3d 381, and cases cited therein.
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 3-1
COOPERATING INDIVIDUALS AS WITNESSES AND DISCOVERY
ISSUES
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When a cooperating individual has provided information in the course of an investigation, an inquiry of
the investigating officer is necessary to uncover unusual problems and to insure the prosecution
discharges its duty to discover any substantial material evidence potentially favorable to the defendant
under Brady v. Maryland (1963) 373 U.S. 83 or evidence which would undermine confidence in the
outcome of the trial.1
Similarly, when a CI will be used as a witness, whether at an in camera hearing
or as a witness at trial, the deputy who will present him or her must know all of the ramifications in
advance.
A. Requirement and Scope of Inquiry Regarding the Cooperating Individual
In cases where CI involvement has been identified, appropriate inquiries should be made at the
earliest opportunity by any deputy handling the case. In cases where the CI will neither be disclosed
nor offered as a witness, the required inquiry may be limited to those areas which may tend to
disclose substantial material evidence favorable to the defendant or which may tend to exonerate him.
“[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting
on the government’s behalf, including the police.”2
To comply with Brady, supra, the prosecution
must inquire into those areas most likely to contain such information. This obligation may arise at any
stage: issuing, preliminary hearing, evidentiary hearing, trial, and post-conviction.
At the other extreme are cases in which a CI’s identity is to be disclosed and he or she will be called
as a witness at a hearing. There, a very thorough inquiry of the investigating officer is required.
Because such persons are themselves usually criminally involved and because of the opportunity for
mistakes and abuses in their relationships with police agencies, there are many potential problems
which can arise when a CI will testify. Thus, the scope of the inquiry must be much broader and
should include all areas of the CI’s activities and relationships which might be explored on cross[1]examination by the defense attorney. The inquiry should be made by the deputy who will conduct the
hearing in which the CI will testify.
Inquiries, as detailed below, into the activities and relationship between the CI and the police should be
arranged with the investigating officer as soon as it becomes clear the CI was involved in the case.
Chapter
3
Page 3-2 CIs as Witnesses and Discovery Issues June 1997
The investigating officer will often be the officer who supervised the CI. If not, he will direct inquiries
to the proper officer.
As a general rule, CI inquiries should be made only with the officers handling the case and not directly
with the CI. A deputy should never communicate directly with a CI unless a police officer or DA
investigator is present. (See chapter 6, section A.)
Information gained from CI inquiries, especially unusual facts revealed, must be documented in the
progress notes of a case. Documentation should include the date of inquiry, the name of the police
officer providing the information, and a synopsis of the information provided. If the officer refuses to
disclose the identity of the CI, this fact should be recorded in the progress report. But the name of the
CI or information which will identify him should not be recorded. In rare cases, even the fact a
CI exists should not be recorded where the danger is great. There, a reference to “special issues”
should be entered in the progress notes. (See chapter 5, section D, regarding DA case file
documentation.)
B. Recommended Areas for Inquiry
The scope of the inquiry regarding the CI varies with the nature of the CI’s involvement in the case
and the likelihood of the CI being identified. This continuum ranges from cases in which the CI merely
pointed the finger of suspicion through cases in which the CI will be called as a witness.
The following areas of inquiry are extensive because the potential problem areas are numerous. Any
area where a problem is perceived should be explored carefully.
1. Detection of cooperating individual involvement
In most cases in which a confidential CI has contributed information in the course of an investigation,
that fact is clearly disclosed in the police reports. Occasionally the existence of a CI or the fact
information came from a CI is not mentioned. On rare occasions, police officers have indicated there
were no CIs involved in a misguided attempt to prevent disclosure of the identity of the CI. Besides
the ethical problems this may pose for deputies, all judicial rulings and convictions of defendants may
be endangered.
CI activity should be considered when action or suspicion by officers does not appear justified by the
information contained in their reports. For example, a report may be written as an ordinary traffic
stop, yet officers made inquiries or conducted searches not justified by a simple traffic infraction. The
possible existence of CIs should always be considered in narcotics cases, gang-related crimes,
conspiracies and secret or militant organization cases.
Any deputy who suspects the existence of a concealed CI in a case he handles must inquire of
the investigating officer. The investigating officer’s identity and response should be entered in the
progress notes in the case file. (A special issue entry should be used where existence of the CI is
particularly sensitive.) The officer should be asked to reveal any information about any CI
involvement during the investigation or subsequent prosecution. Deputies who still suspect the
existence of a CI, despite denials, should immediately inform their division chief. If a deputy
determines that a police officer has misrepresented any fact concerning the involvement of a CI in a
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 3-3
case, the deputy’s division chief will notify the District Attorney. Active concealment by a deputy or
an investigating officer of the existence of a CI or an agreement to cooperate was condemned in
United States v. Kojayan (9th Cir. 1993) 3 F.3d 1315.
2. Recruitment
· How and when did the CI begin supplying information?
· What was his motive for becoming a CI?
· Was he trying to mitigate his responsibility for another crime, as is often the case?
· Was anyone close to him released or given some form of favorable treatment in anticipation of or
as a result of his cooperation?
· Were there other motives such as fear of associates, revenge, diverting suspicion from himself,
money, or repentance?
3. Benefits
Benefit was defined in chapter 1, section D. It includes, but is not limited to, leniency in arrest or the
filing charges, bail reduction or release from custody, dismissal or reduction of charges, relocation, or
immunity. This definition includes benefits requested by a CI for himself or herself, or for others.
Benefits are more fully discussed in chapter 5.
The following are some matters which should be covered when considering CI benefits:
· What benefits have law enforcement officers offered?
· Is there documentation of the benefits offered which is customarily kept by law enforcement
agencies?
· What can the CI reasonably expect?
· What has the CI already received?
· Finally, the investigating officer should be instructed that no further promises should be made
unless the assigned trial deputy has been contacted beforehand.
4. Criminal history and pending charges
The investigating officer should provide the CI’s entire criminal history.3
· Review the CI’s criminal record. Although the defense must be informed of the testifying
CI’s felony convictions and misdemeanors involving moral turpitude, a deputy should be
familiar with all the criminal history, especially those incidents which may have led to the CI’s
involvement with the defendant and the police.
· Is the CI charged in any pending criminal case?
· Find all cases pending, state or federal, from traffic infractions to felony appeals.
Page 3-4 CIs as Witnesses and Discovery Issues June 1997
· If the CI has cases pending which were not known to officers, the officers should be asked
again whether they made any general promises of leniency or favorable treatment such as an
officer’s promise to take care of all the CI’s cases.
5. Reliability
· Ask for details of the CI’s activity in other cases which established his reliability. Determine the
kind of cases, the kind of information provided, whether the information was investigated by law
enforcement to determine its accuracy, and whether arrests or convictions resulted from the
information.
· Were there any court rulings in which the CI was found credible or not credible?
· Were there any occasions known to the officers when the CI knowingly provided false or
misleading information? Has any agency “blackballed” the CI?
· If there is reason to believe the CI is untruthful, the deputy should consult with his or her
division chief.
· Ask how frequent the contacts with and supervision of the CI by law enforcement have been.
Will the agency be able to control and track the CI in the future? If a person ceases to be a CI for
a long period, his or her credibility may have to be re-established.4
· Finally, to what extent will the law enforcement agency be able to corroborate the CI’s
testimony?
6. Cooperating individual’s statements
The investigator should provide details on the role of the CI and the information given by the CI about
any charged defendant. Particularly important are statements attributed to a defendant. The deputy
should examine all statements carefully and should be alert for material matters which might be
favorable to a defendant or which contradict statements of the CI contained within police reports or
affidavits for a warrant.
A deputy should never assume that a police officer will provide all necessary information regarding
the CI’s involvement or the CI’s statements. The deputy’s inquiry should focus on uncovering
material evidence which should be disclosed and on any information which may detract from probable
cause supporting a search warrant, supporting arrest of the defendant, supporting a bindover at the
preliminary hearing, or upon evidentiary problems which may occur at trial.
7. Attorney
Ask if the CI is currently represented by an attorney. Has the investigator cleared his contact with the
CI with the attorney? It is very important that a CI’s attorney be fully aware of his client’s
activity as a CI. If the CI is represented by an attorney, even though no cases have been filed against
the CI, obtain the name and telephone number of the attorney from the officers. Review chapter 4,
Contacts with Cooperating Individuals Represented by an Attorney involving a deputy’s ethical
obligations in such cases.
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 3-5
8. Entrapment
The investigating officer may provide CI information indicating entrapment of a defendant where the
conduct of the CI would have been likely to induce a normally law-abiding person to commit an
offense. It is legally impermissible for a CI acting as a police agent5
to place pressure on a suspect by
overbearing conduct such as badgering, cajoling, importuning or any other affirmative act likely to
induce one to commit the crime.6
If the conduct of the CI supports the defense of entrapment, the
deputy should document whether a CI acting as a police agent was instructed on how to act and the
law of entrapment.
9. Ill motives
The investigating officer should be asked if there are any specific facts which bear adversely on the
CI’s probable accuracy in the case under consideration. For example, did the CI have a grudge
against the defendant? Did he have some special motive relative to this investigation? Was he given
some unusual benefit for his activity in the case? Such matters must often be disclosed.7
These areas for suggested inquiry are, as stated, designed to uncover any information requiring
disclosure to the defense counsel. If such information is discovered, but would tend to disclose the
identity of the CI, the case must be reevaluated according to the case issuance guidelines set forth
below.
C. Disclosing the Identity of a Cooperating Individual
The disclosure of a CI’s identity in criminal cases may result in increased risk to his safety and
availability. As noted earlier, disclosure of a CI who will testify should not be made until the last date
required by the rules of discovery.
At the point in any investigation or prosecution that disclosure of the CI or information relating to him
must be made to the court, defense, suspect, or any other non-law enforcement agency, the CI or his
controlling agent must be notified immediately of our intent to disclose. The deputy must bring any
objections to disclosure by the agencies or the CI to his division chief or the DA investigator lieutenant
impacted by the disclosure. Issues raised must be resolved prior to any disclosure of CI
information.
The notification to the controlling agency shall be in writing. Document any notification made to the
CI. In situations where written notice is not practical, recorded or witnessed notification may be
authorized. Copies of the documentation must be forwarded to the DA case files impacted by the
disclosure and the Special Operations Division.
D. Defense Contact With a Cooperating Individual
The deputy must insure that the CI may be located when his or her testimony is required or the court
has ordered disclosure. The CI and the investigating officer should maintain contact with each other,
or other arrangements must be made for locating the CI when needed.
Page 3-6 CIs as Witnesses and Discovery Issues June 1997
If the court orders disclosure of a CI’s identity, disclosing the address of the CI should be opposed.
(See chapter 7, section E.) Once the court has ruled that a CI is material, the prosecution must
demonstrate a good-faith effort to locate the CI so he or she is available as a witness.8
However, this
duty exists only where the CI is a potentially material witness on the issue of guilt.9
It applies to all
police agents whether he or she is a paid CI or not. It does not apply to non-agents of the police, such
as victims, unless law enforcement had a role in making the witness unavailable.10
Although it is not required that the CI actually be produced, a reasonable effort to locate the CI must
be demonstrated.11 However, if the CI’s address is withheld, law enforcement may be required to
produce the CI for defense interview. The case agent or officer responsible for the CI should be
included on the witness list as well as a notation that the officer is responsible for serving process on
the CI. The CI’s name or address must not be entered in the JURIS system.
Endnotes
1. Kyles v. Whitley 514 U.S. ___ [131 L.Ed.2d 490] (1993).
2. Id., at ___ [131 L.Ed.2d at 508].
3. People v. Kurland (1980) 28 Cal.3d 376, 395.
4. People v. Schmidt (1980) 102 Cal.App.3d 172, 179.
5. See People v. Benjamin (1974) 40 Cal.App.3d 1035, 1040; People v. Mendoza (1992) 8 Cal.App.4th 504, 506-
513.
6. People v. Barraza (1979) 23 Cal.3d 675, 689-691.
7. People v. Kurland,supra.
8. Eleazer v. Superior Court (1970) 1 Cal.3d 847.
9. People v. Frohner (1976) 65 Cal.App.3d 94, 103.
10. People v. Hernandez (1978) 84 Cal.App.3d 408.
11. People v. Cheatham (1971) 21 Cal.App.3d 675; People v. Goodman (1971) 20 Cal.App.3d 284; Twiggs v.
Superior Court (1983) 34 Cal.3d 360, 375.
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 4-1
CONTACTS WITH COOPERATING INDIVIDUALS REPRESENTED BY
AN ATTORNEY
¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾
Contacts with a CI or suspect who is represented by an attorney by any member of the Office of the
District Attorney raise many legal and ethical problems. Failure to scrupulously follow legal and
ethical guidelines in this area may easily lead to dismissal of a case and action by the State Bar of
California. The courts view any interference with the attorney-client relationship much more severely
than other constitutional protections afforded a criminal defendant.1
Because of the seriousness of the issues involved, the first requirement is documentation:
CI Guideline 6: A written report shall be generated regarding any contact with a CI known
to be represented by counsel.
Of course, contact with a CI or suspect who is not charged with any crime violates neither the law
nor any ethics rules, even if he is represented by an attorney.2
Various legal and ethical problems
arise depending on the status of the charged CI. Application of the law and ethical rules usually turn
upon whether the CI/defendant is in custody, whether he is charged, what the subject of the contact
is, and who makes the contact.
A. Legal and Ethical Restrictions
The guidelines set forth below should be used to assist in handling the complex area referred to as the
attorney communication rules.
1. Application of Miranda
In determining whether it is proper to have an in-custody CI/defendant questioned regarding a case, a
deputy must carefully determine which right or rights the CI/defendant has invoked, if any, in the case
for which he is in custody. These laws apply whether the interrogator is employed by the District
Attorney or a police agency:
a. Fifth Amendment right against self-incrimination
If the CI/defendant has invoked a Fifth Amendment right against self-incrimination, he may
be re-admonished, and if he or she voluntarily waives his constitutional rights, may be
Chapter
4
Page 4-2 Contacts with CIs Represented by an Attorney June 1997
questioned. The questioning may be about different crimes3
or, as long as his right to remain
silent was initially honored, even the same crimes for which he previously invoked.4
b. Fifth Amendment right to counsel
If the CI/defendant specifically asked for the assistance of counsel, communicating with him
about any case is strictly prohibited so long as the CI remains continuously in custody5
unless,
as indicated below, the CI initiated the contact himself.
Although the Miranda prohibitions upon contact will generally not apply to an out-of-custody
CI/defendant, other law and ethical rules discussed below may bar contact.
2. Application of Massiah
Direct or surreptitious interrogation of a CI/defendant or suspect without the presence of his attorney
after the filing of formal charges is barred by the Sixth Amendment under Massiah v. United
States.
6
This bar applies regardless of his custodial status or the identity of the agency.
But Massiah does not bar interrogation by police without notice to a suspect’s attorney before the
filing of charges even if officers know him to be represented.7
Similarly, Massiah does not bar
interrogation by the police of a defendant formally charged and incarcerated for one crime about other
unrelated and uncharged crimes.8
3. Application of Rule 2-100
A recent change to California’s Rules of Professional Conduct has greatly softened the absolute
prohibition of contact with charged defendants by employees of the District Attorney.
When the CI is charged with a crime, such contacts are proper under Rule 2-100 so long as the
inquiries made of the CI do not involve any case pending against the CI.. Communications with a
charged, represented CI, regarding circumstances completely unrelated to the CI’s pending case,
are authorized by law within the meaning of Model Rule 4.2, Rule 2-100.9
But it would violate Rule 2-
100 if the discussion turns to a potential benefit on a represented case. Note, also, the Miranda and
Massiah cases may prevent contact even if Rule 2-100 doesn’t.
Rule 2-100 applies only to members of this office. Police agencies may not be bound by the same
ethical considerations which bind deputies. When the Office of the District Attorney becomes
involved in the investigation or prosecution of a case, the ethical prohibitions attached to
communications between deputies and criminal defendants may also apply to police officers.10 A
deputy should avoid making police officers his agent by advising officers to make contacts
which members of this office are precluded from making.
B. Required Approval prior to Contacting Represented CI/Defendant
One simple safeguard is to require the approval of a division chief before any member of this office,
directly or indirectly, contacts a represented criminal defendant:
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 4-3
CI Guideline 7: No deputy or DA investigator will communicate with, or refer other law
enforcement to communicate with, any CI who the deputy or investigator knows is
represented by an attorney on any criminal matter without the approval of the DA
investigator lieutenant and the division chief.
In order to insure that the appropriate issue analysis is done before contact with a represented
criminal defendant, the following guideline applies:
CI Guideline 8: No division chief will authorize or direct any deputy, DA investigator or
other law enforcement officer to communicate with, or refer other law enforcement to
communicate with, a CI who the division chief knows is represented by an attorney on any
criminal matter, until the division chief has evaluated the following factors:
· Identity of the CI, his probation and parole standing, the nature and status of all pending
cases, including three strikes issues, and the impact of the interview upon those cases;
· Identity of the CI’s attorney(s) on all pending cases and the need for permission of the
attorney(s) for the interview;
· Nature and status of the case or investigation that is the subject of the interview, and
the impact of the interview upon that case.
· Any other factors unique to the CI, such as sensitive or high publicity issues.
C. Required Admonition for All Represented Cooperating Individuals
In order to minimize the chance that contact with a represented CI/defendant will result in a violation
of his attorney-client relationship, an admonition must be given when contact is initiated:
CI Guideline 9: Before engaging in a conversation with a represented CI about matters
other than those on which the CI is represented, the following admonition must be read:
Admonition Card:
Mr./Mrs._______________, I am here to talk to you only about case(s) 1, 2, 3, etc. (identify
subject of conversation). I will not talk to you about case(s) 4, 5, 6, etc. (specifically identify
all known cases on which defendant has an attorney) or any other case on which you have an
attorney. You may be trying to give information or assistance to me, the District Attorney’s
office, or law enforcement, in exchange for a benefit or law enforcement assistance on one
or more criminal cases. If you have an attorney on any case in which you want a benefit, I
cannot discuss with you even the possibility of any benefit without the consent and
participation of both the prosecutor and your attorney on those cases. If you try to talk to
me about these cases, this conversation will be stopped. Do you understand? (Document
Response from CI.)
The admonition shall be read whenever you are talking to:
1. An in-custody witness, defendant or victim; or
2. When you know that the potential for benefits may be involved expressly, impliedly, or
reasonably anticipated by the CI; or
Page 4-4 Contacts with CIs Represented by an Attorney June 1997
3. Any person known to be represented by counsel whether in or out of custody.
When it is learned during a field investigation that the person is represented by counsel,
the content of the above admonition must be conveyed.
The admonition shall be tape recorded, or written acknowledgment of the admonition
obtained, whenever possible or practical.
D. Avoiding Contact with CI/Defendants about Pending
From the foregoing discussions, it should be clear that it is a violation of case law and ethical rules for
anyone in law enforcement to contact a charged, represented CI/defendant about his charged crimes
without permission of his defense attorney.
Even where a deputy or investigator properly seeks to interview a CI/defendant about matters totally
unrelated to the charges he faces, the CI/defendant may seek to bring up his pending charges by
requesting a benefit in that case in return for his cooperation. Scrupulously avoid such discussion.
Before any talk about the CI/defendant’s case or benefits which might effect that case, the deputy
must confer with the CI/defendant’s attorney and obtain his consent to speak with the CI.11
CI Guideline 10: Members of the District Attorney’s office dealing with a CI shall not
engage in any discussions concerning the CI’s pending criminal case(s), unless done with
the knowledge and explicit permission of his attorney. The permission should be in writing
or otherwise recorded (i.e., audio or video-taped). A progress report note is insufficient.
E. Contact Between Police and Represented Cooperating Individuals
If a police agency intends to contact or recruit a represented CI or suspect, a deputy must ask for
details of all prior contacts with the CI’s attorney. If there has been no contact with the CI’s attorney,
the deputy should ask if there have been communications between the officers and the CI about the
attorney.
Assuming police officers have not contacted the CI’s attorney, a deputy should collect all the
information which the attorney should know about his client’s cooperation. If the attorney represents
the CI in an unrelated case, the attorney need not know all details of the current investigation, but only
that his client is working as a CI.
A deputy should call the attorney and request the attorney’s consent to further communications
between his client and the officers, ask that the officers be allowed to continue communicating
without the attorney being present and ask that the attorney tell the client to call the attorney if the
client has any questions during the meeting with investigating officers. The deputy should memorialize
the attorney’s consent by writing a letter of consent which is signed by the deputy and the attorney. In
discussions with defense counsel in which consent is requested for the client to work as a CI, a
deputy should take care not to identify the law enforcement agency or the nature of the work being
performed. To do so might jeopardize the safety of the operation. By notifying the attorney and
referring the attorney to the client, the client will have the option of providing to the attorney the
identity of the agency and the nature of the work. Any exceptions to the rule that the deputy should
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 4-5
not make unnecessary disclosures about the CI’s cooperation to the attorney while the investigation is
progressing should be discussed with a division chief before specific information is provided to an
attorney.
The assigned deputy DA should be the only law enforcement person who communicates with the
CI’s attorney. This deputy should inform the officers that all communications with the CI’s attorney
will be done by the deputy, in the deputy’s presence, or as specifically directed by the deputy.
Once the required consent or participation of the CI/defendant’s attorney is obtained, any
conversation which follows with the CI/defendant about his pending case must be fully documented.
F. Exceptions to the Attorney Communications
In some instances, a CI or the investigating officer may want to discuss his case without the CI’s
attorney being contacted. This creates at least the appearance of impropriety, and inevitably subjects
our office to accusations of legal and ethical violations.12 The deputy should find out the reason for the
objections and whether they are based on fact or speculation. The deputy should discuss any legal and
ethical obligations with the officers. If the officers still object to the communication, the deputy should
consult his or her division chief immediately.
CI Guideline 11: If a CI expresses the desire to discuss his case without the knowledge or
participation of his attorney, a DA investigator must consult a Deputy District Attorney for
advice and approval of the deputy’s division chief prior to any such discussion.
There are three rare exceptions to the attorney communications rule:
· If the attorney represents the CI only on a civil matter unrelated to the law enforcement
investigation, communications with the CI do not violate Rule 2-100.
· If the attorney is a suspect against whom the client is going to give information, there is an
exception to the attorney communications rule.13
· The third exception occurs when the attorney has clearly adverse interests to his client (the CI),
and communicating with the attorney would jeopardize the CI. This situation often occurs when an
attorney represents more than one defendant or where the attorney’s fee is paid by another
person or organization.14
Whenever a deputy believes that actual danger to the CI would exist if his attorney were notified of
the CI’s cooperation or that some other exception to the attorney communications rule exists, the
deputy should immediately contact his division chief. The matter must be brought to the attention of
either the District Attorney, Assistant District Attorney, Chief Deputy District Attorney or the
Chief of Special Operations, since only they can authorize an exception to the attorney
communications rule. There is no uniform resolution of the problems posed by conflict of interest
situations. Each situation must be dealt with individually.
A deputy should not allow any communication to occur between police officers and the CI without
notice to the CI’s attorney unless and until such exceptional communications are approved. If no
exception to the attorney communications rule is authorized, the CI’s attorney must be notified or else
there can be no further communications with the CI.
Page 4-6 Contacts with CIs Represented by an Attorney June 1997
Endnotes
1. See e.g., People v. Moore (1976) 57 Cal.App.3d 437.
2. United States v. Kenney (9th Cir. 1981) 645 F.2d 1323.
3. Michigan v. Mosley (1975) 423 U.S. 96, 104-106; People v. Morris (1991) 53 Cal.3d 152.
4. People v. Warner (1988) 203 Cal.App.3d 1122; United States v. Hsu (9th Cir. 1988) 852 F.2d 407, 409-411.
5. McNeil v. Wisconsin (1991) 501 U.S. 171; Minnick v. Mississippi (1990) 498 U.S. 171; Edwards v Arizona
(1981) 451 U.S. 477; People v. Scaffidi (1992) 11 Cal.App.4th 145, 152.
6. Massiah v. United States(1964) 377 U.S. 201.
7. People v. Duck Wong (1976) 18 Cal.3d 178, 184-187.
8. People v. Webb (1993) 6 Cal.4th 494, 526-528.
9. This is recognized in the NDAA National Prosecution Standards, Second Edition (1991) Standard 24.6.
10. See United States v. Jamil (2nd Cir. 1983) 707 F.2d 638.
11. United States v. Lopez (9th Cir. 1993) 989 F.2d 1032.
12. See United States v. Lopez, supra; People v. Hamilton (1989) 48 Cal.3d 1142, 1155, fn. 5.
13. See In Re Weber (1976) 16 Cal.3d 578.
14. See generally, ABA Disciplinary Rule 5-105(B) and Formal Opinions 1979-49 and 1975-35 of the California
Bar Associationís Committee on Professional Responsibility and Conduct (COPRAC).
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 5-1
BENEFITS REQUESTED BY COOPERATING INDIVIDUALS AND CO[1]DEFENDANTS
¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾
Benefit, which was more fully defined in chapter 1, section D, includes, but is not limited to, leniency
in arrest or the filing charges, bail reduction or release from custody, dismissal or reduction of charges,
relocation, or immunity. This definition includes benefits requested by a CI for himself or herself, or
for others.
A. Impact of Benefits Promised by Police
Law enforcement agencies should never make any promises to a CI regarding the charges to which
he or she may plead, or the sentence to be imposed. Even promises by law enforcement officers to
make recommendations to the District Attorney should be avoided since they can raise false
expectations. Similarly, law enforcement should seek the assistance of a deputy before contacting the
probation department on a CI’s behalf. Such promises and expectations will greatly impair the
legitimate areas of discretion belonging to the District Attorney and the courts.
Promises made and negotiations with CIs by police investigators have been held to be binding on the
District Attorney even though not a party to the negotiations.1
This can have a devastating effect on a
subsequent prosecution of the CI as well as the prosecution of defendants against whom the CI
testifies.
A general promise to speak on behalf of the CI to a judge or a deputy in an effort to gain a CI’s
release from custody has resulted in a court holding the District Attorney was bound to confer a
benefit to the CI. The same has occurred when police officers have told prospective CIs that they will
recommend immunity. These promises can be binding on the prosecution whether they know about
the deal or not.
An important CI benefit is anonymity. Deputies must find out if the CI was promised that he or she
would not be disclosed, or would never have to testify. Promised anonymity requires careful, prompt
analysis because such a promise may mean that charges will not be filed or that filed charges must be
dismissed because the CI is an essential witness who can never be used.
In some instances, police officers have sought benefits for their CIs by directly contacting judges. Any
benefits requiring court action should be requested only by the District Attorney through his deputies.
Any such direct interaction between police and a judge without the approval of a deputy should be
Chapter
5
Page 5-2 Benefits Requested by CIs and Codefendants June 1997
brought to the attention of either the District Attorney, Assistant District Attorney, Chief Deputy
District Attorney, or, in their absences, the Chief of Special Operations.
In short, police agencies should be instructed not to promise a CI benefits which include the
exercise of prosecutorial discretion without first obtaining approval of a division chief.
Some promises made by law enforcement come to light after they have already been made and are
found in a police report, during an interview of the investigating officer or CI, or from a defense
attorney. Deputies should ask officers and investigators to reduce to writing any promises, no matter
how innocuous they may seem.
Promises made by police agencies without approval of the Office of the District Attorney must be
carefully scrutinized to determine what promises, if any, are binding. A division chief should be
consulted to determine if a promise must or should be honored.
B. Benefits Requested by Police Agencies
Frequent requests are received by deputies from police officers and investigators for some benefit on
behalf of a CI or criminal suspect. In some instances, these requests are inappropriate and have not
been properly reviewed by the officer’s superiors. The first response is to insure that a command
level supervisor has approved the request for a benefit:
CI Guideline 12: The District Attorney’s office will not accept any request by law
enforcement agencies for benefits involving a defendant on a pending criminal case unless
personally approved in writing by a command level police supervisor; i.e., lieutenant or
above.
Requests by law enforcement agencies must be made in writing and must come from a police
command-level supervisor as noted above. The request must identify the intended CI beneficiary by
name and any relevant case numbers in which benefits are desired. The request must reflect a
legitimate police purpose.
Of course, the law enforcement request must be referred to the division chief since his or her
approval is required. Until the division chief agrees, the requested benefit cannot be granted.
CI Guideline 13: No deputy, DA investigator, or other member of the District Attorney’s
office shall assist in offering or facilitating any CI benefit which has not been previously
approved.
Any time a police agency requests some benefit on behalf of a CI or suspect, the deputy must obtain
full information about the CI, his background, and his involvement in any current case. An inquiry as
suggested in this manual should be made.
There are limits beyond which a division chief may not go, depending upon the criminal record of the
potential CI:
CI Guideline 14: No violent offender shall be used as a CI without the approval of the
District Attorney, Assistant District Attorney or Chief Deputy District Attorney. A violent
offender is a person charged with a crime of violence, has a violent criminal history, or is
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 5-3
possibly a danger to the victim or others. The request for the exception will be made by the
Division Chief.
Just as serious are requests for benefits on behalf of defendants or suspects known or believed to
have a prior strike conviction.
CI Guideline 15: No member of the District Attorney’s office shall discuss, offer, or agree
to any benefit impacting a striker CI in exchange for cooperation without the consent of the
District Attorney, Assistant District Attorney, Chief Deputy District Attorney, or Division
Chief.
In determining whether a benefit requested for a CI or suspect should be granted, the value of the
CI’s prospective testimony or other assistance should be balanced against the seriousness of any
crimes the CI has committed and his or her criminal record.
In cases where a police agency is seeking a benefit for a CI who is currently charged by or under the
investigation of another agency, it should also obtain the consent of the other agency and provide the
name of the officer who gave the permission.
C. Authorization of Benefits
All requests for benefits must be submitted to the chief of the division prosecuting the case. The
following are guidelines to be employed by division chiefs in evaluating requests for benefits frequently
made by police agencies on behalf of CIs:
1. Dismissals
Division chiefs are authorized to approve dismissals or plea arrangements, whether involving an
infraction, simple traffic offense, a misdemeanor or felony, but may wish to consult in more difficult
cases with the District Attorney, Assistant District Attorney, or Chief Deputy District Attorney.
The power of dismissal should be used sparingly. If a division chief concludes a dismissal is
unwarranted, he or she should deny the request and forward the request to the Chief of the Special
Operations Division.
For approved requests for benefits, the deputy handling the case should prepare a Cooperating
Individual Benefits Record (CIBR). (See section E.2, infra.)
2. Own recognizance (OR) releases
Division chiefs have the same authority with respect to requests for OR releases. The deputy should
elicit all details of the offense for which the CI is in custody. Such requests should ordinarily be
rejected if the CI is charged with a crime of violence, has a violent criminal history, or if there is
reason to believe he will commit a new offense if released.
Page 5-4 Benefits Requested by CIs and Codefendants June 1997
If the division chief, or higher level supervisor, approves the OR release, the deputy handling the case
will record the action and relevant facts in the case file and notify the CI’s attorney. A CIBR form
and supporting documents should be forwarded to the Chief of Special Operations. (See section E.2,
infra.) Requests for OR release which are disapproved should also be documented in the case file.
If charges have not been issued, the DA case file should reflect the information which has been
provided by the police officer at the time of the request for the OR release.
3. Favorable recommendations to a court
Ordinarily, a deputy promises only to make a CI’s cooperative conduct known to the sentencing court.
On rare occasions, deputies agree to make a specific favorable recommendation to a court if a
charged defendant cooperates as a CI. A promise to make a specific favorable recommendation to a
court must be approved under the same conditions and in the same manner outlined above. However,
a deputy should never agree to make a specific recommendation based only upon a CI’s promise of
future cooperation.
If a promise is made to make the CI’s completed cooperation known, it must be noted in the case file,
acted upon at the appropriate time, and both the police officers and the CI’s attorney should be aware
of the agreement. When a recommendation is made to a court, it must accurately reflect the CI’s
cooperation or failure to act as promised.
4. Requests for money
CI Guideline 16: Notwithstanding the language of Penal Code section 4001.1, no employee
of the District Attorney’s office shall authorize the payment of money in exchange for
testimony.
a. Expenses
Requests for legitimate witness expenses, including travel, food, and lodging, should be made
routinely on the Expense/Witness Travel Request Form. However, requests for emergency
funds, relocation, money for protection, maintenance, lodging of family members, or other
extraordinary purposes must be made in writing by the deputy or D.A. investigator assigned.
A written evaluation of the request must be prepared by the division chief. The request and
evaluation must be sent to the Assistant District Attorney or Chief Deputy District Attorney
for final approval.
b. Compensation
Cash compensation to CIs will be paid as follows:
· Any payment for expenses should be discussed in detail so there is no room for any
misunderstanding of the terms of the arrangement.
· The payment for expenses and any instructions given the CI should be in writing and
made at the beginning of the operation.
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 5-5
· CIs should understand they are not to operate as independent contractors and that they
must submit to the control of the agent in charge at all times or the CI risks the loss of all
compensation and any other benefits extended.
· All payments made to a CI should be reported to the deputy.
· Expenses should not be exaggerated. Expenses should always be documented.
· Law enforcement officers should get receipts for all expenditures on behalf of a CI.
These receipts should be saved and be available for the deputy if it becomes necessary to
produce them. If there are no receipts, law enforcement officers should maintain a record
of the expenses paid to the CI.
· Do not allow the CI to change the payment agreement mid-stream.
· The fee arrangement should be finalized before the CI ever takes the witness stand.
· Withhold payment if the CI deviates from the terms and conditions set out in the
agreement.
· All payments must be witnessed and documented by at least two law enforcement
witnesses.
· The CI should be required to sign a receipt for all payments and a copy of that receipt
should be witnessed and documented by both individuals. A copy of the receipt will be
retained for law enforcement purposes.
5. Subsistence
A police department may request that the District Attorney contribute funds for room and board
expenditures made on behalf of CIs who act as prosecuting witnesses in a case. The following
guidelines apply:
· As a general rule, the DA will not subsidize witnesses pending a court hearing or trial, whether
before or after preliminary examination.
· The DA will authorize payments for traditional witness expenses such as travel to appear at a
hearing or trial, witness fees, and lodging and meals while present in San Diego under subpoena
during a hearing or trial. These will be paid after a witness claim form is submitted.
· As a general rule, the DA will not pay for expenses to locate a witness out-of-town pending
hearing or trial but will provide travel expenses to bring them back for the hearing or trial.
· Exceptions may be made in unusual situations.
Other benefits not included in the above are sometimes extended to a potential CI. As with the
benefits listed above, requests for these benefits must be submitted to the chief of the division which
would prosecute the case.
CI Guideline 17: In cases where the CI is required to testify, information concerning
benefits received by the CI in exchange for the CI’s cooperation shall be communicated to
the defense as required by law.
Page 5-6 Benefits Requested by CIs and Codefendants June 1997
D. Benefits Requested by Cooperating Individuals During Interviews
During interviews of most codefendants and many CIs, a deputy or D.A. investigator may be asked
for benefits, large and small. Reasonable requests, such as protection during court appearances, may
be granted during an interview. Practically any discussions regarding any other request for a benefit
must be deferred and discussed with investigating officers and a division chief outside the CI’s
presence.
Generally, benefits should not be discussed with or promised to a CI, other than those approved in
accordance with the directions of this manual. Deputies and law enforcement officers should not
make promises they cannot keep. When the CI or codefendant asks for some benefit that a law
enforcement officer knows the District Attorney’s Office will not give, the CI should be told the
request cannot be granted. Deputies and law enforcement officers must be honest with CIs at all
times. There should be an explanation that no promises can be made and that everything must be
approved by supervisors with a view toward a formal CI agreement.
Any CI or codefendant benefits later promised in exchange for CI obligations must be written into a
CI agreement and signed by the deputy, the investigating officers and the CI. (See chapter 6.)
Any demand by CIs or codefendants for formal immunity pursuant to Penal Code section 1324,
before giving information in an interview, should be declined. It is naive to suggest that immunity
should be given entirely, completely and without first obtaining the testimony that invited the grant of
immunity in the first place.2
CI agreements must be carefully limited to specific offenses only. If CIs or codefendants voluntarily
admit involvement in some other crime, the statement may be used against them.3
Because it is
important that both sides understand the limits of such a promise not to use a CI’s or codefendant’s
statements against him, this understanding and the entire conversation should be tape recorded.
Even with the protection of a tape recording and the presence of an investigator, agreements not to
use the statements of CIs or codefendants against them can create problems, such as when the CI
reveals the location of key items of evidence. The evidence is probably not admissible against the
informing codefendant, but may be used against other defendants.4
Upon objection by an informing
codefendant, the prosecution may be placed under a burden of proving evidence had a source
completely independent of statements made during such an interview.5
A deputy should not make
any offer not to use the statements of CIs or codefendants against them without discussion with
and approval of the division chief.
If a use restriction is approved by a supervising deputy and accepted by the CI or codefendant, he or
she should be questioned thoroughly. It is impossible to intelligently decide appropriate action without a
thorough knowledge of what the CI or codefendant has to offer.
It is important that all benefits promised be conditioned upon the CI telling the truth rather than some
story desired by the deputy, the codefendant’s attorney, or police officers.6
Of course, deputies should also be aware of their obligation to inform the defense of all promises
made to a CI or codefendant in return for his or her testimony.
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 5-7
E. District Attorney Documentation/CIBR
1. DA case file documentation
A DA case file concerning a CI’s pending case must contain in the progress notes (left side of file)
notations informing any deputy handling the CI’s case of the existence of a Special Operations CI file.
No actions concerning the CI’s case should be taken by a deputy without having first consulted with
the deputy handling the criminal case in which the CI is assisting. Such notations will appear as
follows:
· Generic identifier progress report note: Special issues. See (control deputy e.g., division
chief).
· Unsolicited contact progress report note: A(Name, e.g., Officer Jones, Dee Fenz), of
(Agency, e.g., SDPD) contacted me on (date) regarding special issues. See (control deputy,
e.g., division chief).
2. Cooperating Individual Benefit Record (CIBR)
CI Guideline 18: For every CI, a Cooperating Individual Benefits Record (CIBR), a
Cooperating Individual Worksheet, and a CI Status Report will be completed and kept up
to date. (Appendix “A”)
Any benefit extended to a CI (charged with a crime or otherwise) must be documented on a
CIBR form, signed by the division chief supervising the deputy handling the CI, and/or the division
chief handling the case on which any benefit is extended, and sent to the Chief of the Special
Operations Division. This applies to all CI situations, including cases being handled by special
divisions. Appendix “A” is the CIBR form which must be used.
The deputy handling the case should attach to the CIBR copies of documents relating to the
agreements, background and criminal arrest history of the CI and any other pertinent documents. The
Chief of Special Operations will maintain a confidential record of the CIBR and supporting documents
and an alphabetic index.
CI Guideline 19: The original of all forms will be maintained in a confidential file in the
District Attorney’s Special Operation’s Division. Numbered copies of the Cooperating
Individual Agreement and Cooperating Individual Regulations forms will be made available
to the CI’s attorney and the case agent upon request.
Deputies shall also document cases where a potential CI’s offer to cooperate is declined, and cases
where a potential CI requests but is not extended a benefit. The records maintained by the Chief of
the Special Operations Division will serve as a ready reference to refute assertions to the contrary.
A CIBR shall be generated and sent to Special Operations in each of the following
situations:
a. Offer/rejection CIBR
This CIBR documents the details of a potential CI’s offer to cooperate and should include
details of any debriefing conducted as part of the evaluation. It should set forth anticipated
Page 5-8 Benefits Requested by CIs and Codefendants June 1997
events, such as evaluation efforts by investigators and corroboration. A copy of any written
agreement regarding the initial meeting with a potential CI, such as those in Appendices “D1”
and “D2,” must be submitted with the CIBR. In the event the potential CI’s offer is
subsequently declined, the rejection CIBR should be sent to Special Operations setting forth
the reasons for rejection, and the date the rejection was conveyed to the potential CI. If the
potential CI’s offer is rejected immediately, a single CIBR may be sent describing the
potential CI’s offer and the reasons for immediate rejection. Notification of the rejection given
to the potential CI must also be documented.
b. Opening CIBR
This CIBR documents the date the cooperation relationship begins and the details of any
cooperation agreement. It must be submitted to Special Operations immediately after an
agreement to cooperate, such as the cooperation agreement in Appendix “F” is made,
regardless of the anticipated cooperation completion date. Copies of any initial meeting
agreements must also be included.
c. Cooperating Individual Status Report
This status report documents activities, benefits, expenses and criminal cases involving the CI
and recommendation regarding continued active status or deactivation of the CI. This report
must be sent to Special Operations every 60 days from the date the CI is activated (opening
CIBR), until the date the CI is deactivated (closing CIBR). The proper form is the
Cooperating Individual Status Report included as Appendix “B.”
d. Closing CIBR
This CIBR documents all benefits conveyed in exchange for completed cooperation, and the
date the cooperation relationship ended.
Endnotes
1. People v. Hayes (1988) 200 Cal.App.3d 400.
2. People v. Manson (1976) 61 Cal.App.3d 102, 135.
3. See People v. Superior Court [Crook] (1978) 83 Cal.App.3d 335, 340-341.
4. See People v. Varnum (1967) 66 Cal.2d 808.
5. See Kastigar v. United States (1972) 406 U.S. 441, 460.
6. See People v. Medina (1974) 41 Cal.App.3d 438.
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 6-1
USE AND CONTROL OF COOPERATING INDIVIDUALS
¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾¾
In most situations, selection, use, and development of a cooperating individual is accomplished by a
law enforcement agency prior to the involvement of the Office of the District Attorney. Within the
limitations provided in this manual, it is appropriate that police agencies operate independently of the
District Attorney when recruiting and controlling CIs, particularly given a prosecutor’s ethical
constraints and the potential civil liability concerns raised when prosecutors act outside the judicial
framework in which they enjoy absolute immunity.
Deputies and DA investigators may also become involved in a wide variety of circumstances in the
initial debriefing and recruitment of a prospective CI. In these situations, the assigned deputy may
directly assist in developing the terms of the CI agreement as set out in this manual.
The primary purpose for using CIs, especially those who are themselves involved in committing
crimes, is to develop a criminal case against the more culpable criminals; e.g., the heads of criminal
organizations or the more serious offenders. Using a CI merely to increase the number of arrests
without regard to prosecuting the most culpable offenders is seldom justified. Police officers must be
informed and reminded of these considerations.
As noted above, police officers using CIs must also be frequently warned not to make any plea or
sentencing agreements, or to promise any other benefits, to a CI concerning his or her own criminal
matters.1
Once a criminal case has been presented to the Office of the District Attorney, law
enforcement contacts and negotiations with a CI on the case must be approved by a deputy.
A. Interviewing Cooperating Individuals or Codefendants
In any case in which a CI will testify, it is imperative he or she be fully interviewed by the deputy who
will conduct the hearing. The same is true when it is anticipated a codefendant (i.e., accomplice; see
Pen. Code, § 1111) who has been given any benefits by the prosecution will testify.
A deputy should never interview or communicate with a CI or co-defendant alone. A peace
officer, the investigating officer or a DA investigator should witness all communications with a CI. In
addition, the attorney for a CI, if any, must be present unless both the CI and the attorney consent to
the attorney’s absence. Whenever practical, any interview with a CI should be recorded. A deputy
Chapter
6
Page 6-2 Use and Control of Cooperating Individuals June 1997
should always communicate with CIs and codefendants as if they were on the record in court.
A deputy should never become unprofessionally friendly with a CI or codefendant, even after the
CI’s official role is completed.
An interview with a CI or codefendant should be in detail, extensively covering all aspects of the
individual’s proposed cooperation and testimony including the CI’s own background, his or her degree
of criminal involvement, and any other discoverable information the CI may have to respond to while
testifying. The CI’s knowledge of the facts and circumstances being litigated must be discussed in
detail. The deputy should anticipate discovery motions and cross-examination questions.
Particular attention must be paid to indications of the CI’s credibility, or lack thereof. Should reason to
doubt the validity of the CI’s information develop, or otherwise question the honesty of the individual,
the deputy’s division chief must be immediately consulted. A written report of every CI
communication which is not tape recorded should be prepared. (See chapter 5, section D,
regarding benefits requested by CIs during interview.)
B. Use of an Agreement for the Initial
In the limited situations when the Office of the District Attorney is directly involved during the early
stages of CI recruitment, the prospective CI must be interviewed to determine the value of the
potential information and the CI’s willingness to follow directions and gather information. The
parameters of the initial meeting with a potential CI must be communicated to the potential CI through
the use of the Agreement Regarding the Initial Meeting Between Potential Cooperating Individual
(PCI) and Prosecution, contained in Appendices “D1” and “D2.”
CI Guideline 20: In all matters in which a defendant or witness is being interviewed by a
DA investigator, or referred to another law enforcement agency for interview, for the
purpose of evaluating that defendant’s or witness’s potential information or potential as a
witness, and the defendant or witness is seeking any benefit or law enforcement assistance
on any criminal, civil, or administrative matter, the interview shall be tape recorded, and the
District Attorney Initial Meeting form shall be completed. (Appendices “D1” and “D2.”)
The purpose of the initial meeting contract is to allow law enforcement to debrief a potential CI to
determine and evaluate his information and efforts, without being locked into cooperation or benefits
to a potential CI who proves to be undesirable or of no value at the conclusion of the debriefing.
The contract, Appendices “D1” or “D2,” memorializes several key points:
· The debriefing is a “free talk” session, which means both sides have the option to decline
cooperation at the end of the meeting, with no further obligation or benefit. Both sides return to an
arm’s length prosecution relationship.
· Statements made by the potential CI will not be used against the potential CI in the case-in-chief
on specified cases, but may be used to impeach. This allows the potential CI the ability to speak
freely, but requires honesty. The prosecution should not deal with a dishonest CI. The
impeachment-only clause will only hurt a defendant if he or she testifies differently than the
statement made during the initial meeting. Simply put, the potential CI cannot tell law enforcement
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 6-3
one version in an effort to obtain cooperation options, and then tell the court or jury a different
version, even if cooperation does not work out.
· There is no cooperation agreement or benefit unless and until a final agreement is drafted and
signed by all parties. This clause allows the final cooperation agreement to be tailored to the needs
of all parties, based on the information obtained during debriefing and the goals of any planned
cooperation.
· There are no other agreements other than those set forth in the agreement. This clause eliminates
any “wink and a nod” informal agreements between law enforcement and the potential CI. It also
allows the initial meeting to serve as a forum to air out any misunderstandings, impressions, or
confusion at any early stage.
The two contract forms included in Appendices “D1” and “D2” differ in that “D2” also contains a
waiver of the presence of the attorney for the CI during the actual debriefing. It is strongly suggested
the deputy also utilize the Cooperating Individual Worksheet contained in Appendix “C” for recording
relevant contact and other information about the potential CI.
In some cases, it may be necessary to obtain a short term release of a potential CI into the custody of
a detective in order to properly evaluate the CI’s information. The declarations and orders contained
in Appendices “H1” and “H2” may be used for this purpose.
C. Factors to Consider with Potential Cooperating Individuals
The number of factors which must be considered in evaluating a potential CI are greater than the
areas of inquiry discussed in chapter 3, section C, for CI’s who will become witnesses. A quick
reference listing of these same factors may be found in Appendix “E”.
1. Potential CI’s criminal background
· Record for violence - Review a potential CI’s prior record from all known case files and
probation reports. Watch in particular for acts, arrests, and convictions for violence, including
domestic violence, DUI, association with violent organizations, and any weapons history. This
information is critical to assess his potential for future violence.
· Substance abuse - A potential CI’s history of abuse of drugs and alcohol must be considered.
· Criminal sophistication - A potential CI’s criminal sophistication should be considered, including
his street smarts, criminal contacts, potential for ongoing criminal activity, and his mental capacity.
· Dishonesty - Indications of dishonesty should be considered, both in charges implicating his
veracity, statements to officers and probation officers, and failures to appear.
· Record as a CI - Prior activity as a CI weighs heavily, particularly if he has been “blackballed.”
· Control Issues - The potential CI’s continuing criminal potential may pose control problems,
particularly those who have drug and DUI problems, are gang members, or are flight risks.
Page 6-4 Use and Control of Cooperating Individuals June 1997
2. The potential CI’s “tail”
· Probation conditions - Related to the potential CI’s record is his probation and parole status. CI
activities may lead to a violation of his probation conditions, such as a non-association clause. If
the potential CI has a probation officer, that officer’s consent should be sought. Depending on the
probation conditions, the court may need to be notified. Federal courts must be notified.
· Parole consent - Similarly, the consent of a potential CI’s local parole officer must be sought. If
the parole officer objects, there is an appeal process through the State Parole.
· Juvenile Wardship - If a minor is a ward or dependent of the Juvenile Court, permission of both
the court and the parent or guardian is also required. Consent must also be obtained from the
minor’s probation or CYA parole officer. For foster children, there may also be potential County
liability.
3. Potential CI’s Status in Criminal Justice System
· Motivation - Explore the potential CI’s motivation, especially when he is not a defendant. The
agency may have policies barring a potential CI, due to his age, immigration status, or the type of
operation in which he may be used.
· Status of all cases - Again, information on all active investigations, prosecutions, and probations,
in all jurisdictions, is vital. Consider using Penal Code section 1275 to learn more about the
potential CI.
· Impact on other defendants and cases - Benefits given to a CI defendant may have an impact
upon other defendants in the same or other cases which might disclose his activity or status as a
CI. This is particularly true of benefits on bail, plea bargaining and sentencing. Alternatively, a
reduction of bail could lead a court to reduce bail for codefendants. Consider whether all of the
potential CI’s defense attorneys, prosecutors and the court know of or agree to the potential CI’s
release or cooperation. It may be important to avoid alerting a potential CI’s bail bondsman.
· Sentencing Issues - A potential CI facing sentencing raises issues of his exposure and possible
recall under Penal Code section 1170(d). Even a sentenced potential CI requires consideration of
pending or possible appeals and his right to counsel.
· Prior strikes - Potential CIs who have known or suspected prior strikes pose unintended benefit
problems. Because probation is barred and the substantial impact on sentence, strikers,
particularly third strikers, should generally be avoided except in the most serious cases where their
cooperation is crucial. Agreements to strike a strike or dismiss a count as a benefit for
cooperation require the approval of the District Attorney, Assistant District Attorney, or Chief
Deputy District Attorney. Public relations and the impact upon other strikers must be weighed.
4. Other Status Issues
· Juveniles - Many agencies will not consider using a minor as a CI because of civil liability and
significant parental issues. Knowledge and consent of parents or guardians are required. Consider
also the parents’ criminal record, pending cases, and ties. Other complications include custodial
problems and maintaining contact with minors moved among an extended family. Many of the
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 6-5
same considerations apply to emancipated minors and some adults, particularly, those subject to a
guardianship or conservatorship.
· Immigration status - A person’s status may effect their ability to act as a CI. These include his
immigration status, pending immigration holds, bail on an immigration case, or physical location,
which require the cooperation of an Assistant U.S. Attorney. Explore with the AUSA the impact
of the federal sentencing matrix.
· Military status - Military considerations are important for a potential CI who is serving or plans
to serve. The impact of an arrest, conviction, and sentence varies greatly depending on the
charge. Of course, his availability must be explored.
5. Potential CI’s legal representation
· Miranda, Massiah, and Rule 2-100 - Dealing with represented, charged CIs raises a host of
issues, including violations of Miranda, Massiah, and Rule 2-100 of California Rules of
Professional Conduct. (See chapter 4, section A.) These issues are greatly complicated where the
potential CI does not want his attorney to know of his contact or cooperation, or where his
attorney has a conflict of interest. Some defense attorneys are actually retained by a criminal
organization to which their client belongs. Some attorneys will refuse to cooperate or make a
record of their cooperation for various reasons.
· Unrepresented defendants - A brief window of opportunity exists between arrest and
arraignment. But any agreement for cooperation made without an attorney will be construed most
favorably to the potential CI.2
6. What will the potential CI produce
· Target value - Weigh the benefits and risks to the potential CI against the value of the target
defendant or organization. Explore the target’s criminal history and pending prosecutions, the
danger to the community, what the potential CI can do to strengthen the investigation and
prosecution, and the likelihood of a prosecution without the potential CI.
· Goals - Goals for a CI may include incrimination of codefendants, unrelated suspects and
defendants, and mass operations. CIs may also be used for intelligence information, or other
beneficial purposes which might not lead to immediate criminal prosecution.
· Exonerating information - Information from a potential CI tending to exonerate other suspects
or defendants may present a serious dilemma between our obligation to provide favorable
information and our duty to protect the CI. It may be possible to provide that information to the
appropriate parties as required by Brady, without disclosing the CI, but dismissal may be the only
alternative.
7. Disclosure issue
Page 6-6 Use and Control of Cooperating Individuals June 1997
· Legal issues - Generally, the CI’s identity and information are confidential under Evidence Code
sections 1040 and 1041. But when a CI is to testify, disclosure to the defense will likely include
the CI’s criminal record, as well as agency and DA benefit records. Consideration must be given
to the potential CI’s right to counsel, and to possible immunity issues. Jury instructions relating to
entrapment, credibility, and in-custody CIs under Penal Code section 1127a should be reviewed.
· Protection or relocation - If a potential CI’s identity is to be disclosed, significant issues may
arise regarding protection or relocation, the responsibility and timing of the disclosure, and notice
to the CI, his control agent, prosecution, the court and the defense.
· Defense interview - Consider how to handle defense requests for an interview. Issues of control
and safety of the potential CI are greatest for in-person interviews. Refusals by the CI to be
interviewed can be in person, by phone, or by stipulation.
8. Benefits sought by potential CI
· Benefits for others - Sometimes, CIs seek benefits for other defendants or uncharged suspects
in the same or other cases. These raise safety issues depending on whether the beneficiary
defendant is aware either that he has received a benefit or of the CI’s cooperation. Such
arrangements also raise the same issues identified in item 5, above, regarding the attorney for the
beneficiary defendant. Benefits may also be requested for family members or friends.
· Limiting benefits - Benefits offered a CI need not be given in all pending matters. They may be
limited to specific pending charges or cases but not others. Benefits may be limited to uncharged
crimes or to probation revocations.
· Victim considerations - Several issues relating to impact upon the potential CI’s victims should
be carefully considered. Benefits given an in-custody CI may trigger notice to the victim pursuant
to Penal Code section 1191.25. Victim safety concerns should be paramount, particularly where
the potential CI may be released from custody. Our duty to notify and explain to the victim goes
beyond our Tarasoff3
burden.
9. Miscellaneous issues
· PCI Factors - Factors impacting control also include language problems, the potential CI’s
cultural or sexual bias, and the safety of his family members. On the other hand, the potential CI’s
family or street gang may pose a danger to law enforcement officers. Former paid (mercenary)
CIs raise credibility problems when they become defendant CIs.
· Control issues - An important issue is control, determined by the experience and record of the
control agent, his commitment to follow through, the logistical support available to him, and the
number of CIs already subject to his control
· Conflict avoidance - Finally, decisions involving potential CIs must take into consideration
possible disagreements with other divisions and police agencies over the use and handling of the
CI. Even potential media impact must be weighed in some cases.
D. The Cooperating Individual (CI) Agreement
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 6-7
Once a decision has been made to use the individual as a CI, a cooperation agreement MUST be
prepared which will spell out the rights and obligations of both sides. (Appendix “F”)
CI Guideline 21: If use of a CI is approved by the District Attorney’s office, the terms and
conditions under which the CI will work shall be reduced to writing and signed by all
parties.
Of course, “all parties” includes the CI’s attorney:
CI Guideline 22: If the CI has a pending or prospective criminal case and is represented
by an attorney, a cooperation agreement shall only be made with the full knowledge and
consent of the CI’s attorney. (See chapter 4 regarding contacts with CIs represented by an
attorney.)
The Cooperation Agreement contained in Appendix “F” is a written document that specifically sets
forth the details of the CI’s cooperation, and the range of benefits that may accrue. A properly
drafted agreement eliminates confusion and surprise for both prosecution and the CI. The agreement
permits the sentencing judge to formulate appropriate sentences within the range of benefits for CIs
who are successful, CIs who are not successful, and CIs who are counterproductive. The agreement
permits triers of fact evaluating a CI’s credibility to understand exactly what the CI expects from law
enforcement in exchange for cooperation. The agreement will also prevent unintended benefits from
accruing in areas or cases not contemplated in the agreement, such as investigations or prosecutions
against the CI that were unknown or undisclosed at the time the agreement was signed.
The agreement should memorialize key points, including, but not limited to:
· Parties to the agreement, such as the CI, the CI’s attorney, the court, the district attorney, law
enforcement agency, parole, probation, and others.
· All cases, charges, investigations, and revocations against the CI that will be impacted by the
agreement. Cases or charges known, but intentionally excluded from possible benefit impact,
should also be specified.
· Specific pleas contemplated. Include case numbers, charges, date of the plea, charges to be
dismissed, and other terms. (See CI Guideline 23, below.)
· CI custody status during cooperation. Include limitations, if any, such as 4th Amendment
waiver, drug testing, travel, honesty, continued cooperation, and a promise to remain law abiding.
· Specific limitation of possible benefits to those covered in the agreement.
· Incorporation of District Attorney CI regulations. (Appendix “G”)
· Specific promises by the District Attorney in exchange for the cooperation.
CI Guideline 23: As part of a CI’s agreement to cooperate, the CI must enter a plea of
guilty encompassing any pending cases for which benefits are sought, negotiated with the
CI’s attorney pursuant to District Attorney plea negotiation policy and state law. No plea
bargain regarding a CI will be contrary to statute (E.g., Pen. Code, § 1192.7) or established
District Attorney policy.
Page 6-8 Use and Control of Cooperating Individuals June 1997
CI Guideline 24: All CI agreements entered into between law enforcement agencies and
the District Attorney’s office, as a prerequisite to prosecution of the targeted suspect, must
be approved by the division chief and the DA investigator lieutenant of the unit likely to
prosecute the targeted suspect(s).
E. Written Instructions for the Cooperating Individual
The agreement and instructions to the CI must specify the methods the CI can use in providing
assistance to law enforcement, and should be acknowledged in writing by the CI and his or her
attorney. (Appendices “F” and “G”) Necessary instructions include:
· The CI will never be allowed to operate without the direct control of a controlling agent.
· If the CI is going to participate in controlled buys, that prospect needs to be included.
· If the CI is simply going to point the finger of suspicion at a target, that plan must also be made
part of the agreement.
· Whether on-body recordings or taped telephone or direct conversations of the CI are involved.
· Whether the CI will later become identified as a testifying witness.
· The CI must be truthful and candid no matter who asks the questions; an investigator, a deputy, a
judge or a defense attorney. If necessary, the CI must submit to a polygraph examination at any
time requested by the deputy or any police officer working with the deputy.
· The CI must be willing to submit his or her person, home, or automobile to a search at any time of
the day or night whenever requested to do so by a law enforcement officer or by some other
person acting under the direction of the prosecution.
· The CI must also be willing to submit his or her blood, breath or urine for testing at any time of the
day or night whenever requested to do so by a law enforcement official.
· Should the CI desire to terminate the agreement prior to completion, he or she may do so.
However, the prosecution will no longer be obligated to perform any part of the agreement until or
unless the CI has entirely performed as agreed.
Where a CI fails to fulfill his commitments to cooperate, a declaration and order may be used to
revoke his bail and return him to custody. A sample declaration and order are contained in
Appendices “I1” and “I2.”
F. Witness Protection Programs
If a witness or CI is in physical danger and desires protection, the deputy handling the case should
immediately notify the Division Chief and Chief of Investigations, both of whom should seek guidance
from the District Attorney through supervisory channels. The District Attorney’s
Relocation/Protection Protocol will determine the actions to be taken.
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 6-9
If it is discovered at any point that a CI has previously been under a witness protection program, the
deputy should obtain the details. Participants in the Federal Witness Protection Program (FWPP)
usually receive a change of identity which makes determination of their criminal histories difficult.
Some FWPP participants are professional criminals who have become professional CIs. If a CI was
in the FWPP, deputies should contact their division chief or supervisor who should report this fact
through supervisory channels to the District Attorney. The Chief of the Special Operations Division
should be informed immediately of problems with CIs in witness protection programs.
G. The Use of In-Custody Informants
CI Guideline 25: When the CI is an in-custody informant who received or heard statements
made by the defendant while in custody, the trial deputy shall file a written statement with
the court, with a copy provided to the defendant or defense counsel prior to trial, setting
out any and all consideration promised to, or received by, the CI in exchange for his or her
testimony in compliance with Penal Code section 1127a(c). The trial deputy shall give
notice to the victims of the in-custody CI of the intent to provide the CI with any benefits in
compliance with Penal Code section 1191.25.
Penal Code section 1127a(a) defines an in-custody informant as a person, other than a co-defendant,
percipient witness, accomplice or co-conspirator whose testimony is based upon statements made by
the defendant while both the defendant and the informant are held within a correctional institution.
In cases involving a In-Custody CI, these additional rules must be followed:
· Do not issue a case which depends primarily on the testimony of an in-custody CI without the
prior approval of a division chief.
· Whenever an offer of cooperation comes from an in-custody CI, even if the offer is rejected, fill
out a CIBR and send it to the Chief of Special Operations.
· Do not call an in-custody CI as a witness without the prior approval of the division chief and the
Chief of Special Operations.
· Before the in-custody CI testifies, make certain that each of the statutory requirements is met:
· Be certain that peace officers did not violate Penal Code section 4001.1(b), pertaining to how
the in-custody CI obtained the defendant’s statements while both were in custody.
Remember, no in-custody CI acting as an agent for law enforcement may take any action,
beyond merely listening to statements of a defendant, that is deliberately designed to elicit
incriminating remarks.4
· Make certain that every kind of consideration offered or given to the in-custody CI is revealed
as required by Penal Code sections 1127a(c) and (d) and 4001.1(a).
· Make certain the payments rules in Penal Code section 4001.1(a) were not violated by
anyone. Do not assume that the $50 limit in section 4001.1(a) means that an informant has
been paid money to testify. Although members of this office are prohibited from authorizing
payment of money in exchange for testimony, some law enforcement agencies offer financial
rewards to CIs conditioned upon the CI testifying in court. If a deputy becomes aware of a
Page 6-10 Use and Control of Cooperating Individuals June 1997
conditional reward, he or she should promptly make it known to the defense attorney and the
court.
· Make certain the jury is instructed as required by section 1127a(b).
· Whenever a Consideration statement is written about an in-custody CI, send a copy of the
statement to the Chief of Special Operations as soon as it is completed. Even if the CI does
not testify, the statement should be attached to a CIBR and sent to the Special Operations
Division.
Endnotes
1
People v. Hayes (1988) 200 Cal.App.3d 400
2
Id.
3
Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425.
4
People v. Hovey (1988) 44 Cal.3d 543, 561.
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 7-1
MOTIONS TO DISCLOSE THE COOPERATING INDIVIDUAL
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A. Defendant’s Burden to Obtain Disclosure
Defense requests for disclosure of a CI’s identity may come at any stage of a criminal proceeding.
Frequently, the request is made during the course of a preliminary hearing or at trial when the defense
counsel asks the investigating officer on the stand for the CI’s identity. However, requests are often
made in a pretrial motion to disclose the identity.
1. Resisting motions to disclosure at the preliminary hearing
With the passage of Proposition 115 in 1990, defense requests for the discovery of a CI’s identity at
the preliminary hearing have been severely limited. Penal Code section 866(b) prohibits using a
preliminary hearing for the purposes of discovery. Unless the defense can make a credible showing
that disclosure is required to present a defense at that hearing, a motion to disclose the CI should not
be heard.1
2. The privilege under Evidence Code section 1041(a)
A demand for the CI’s identity may be defeated merely by asserting the privilege provided in
Evidence Code section 1041(a), which protects a CI’s identity. The privilege applies only if the
information was furnished in confidence by the CI to a law enforcement agency.2
This privilege may
be asserted by a deputy district attorney or by the investigating officer from the witness stand.3
It also
protects information from or about the CI which would tend to reveal his or her identity.4
Prior to any hearing in which you anticipate defense counsel might ask an officer witness for the CI’s
identity, the police officer should be informed of his right to claim the privilege. This will alert the
officer to invoke the privilege in the event a question is asked which the deputy does not realize might
tend to disclose the CI’s identity.
3. Defendant’s burden of proof
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Once the deputy has asserted the privilege of non-disclosure under Evidence Code section 1041, the
burden is on the defendant to make a sufficient showing that the CI is a material witness on the issue
of guilt and that nondisclosure would deprive the defendant of a fair trial.5
A CI is a “material
witness” if it appears from the evidence presented there is a reasonable possibility the CI could give
evidence on the issue of guilt which might result in a defendant’s exoneration.6
To discharge its burden of proving the CI is a material witness, the defense must make a sufficient
showing that the unnamed informer has information which would be material to the defendant’s guilt.7
The defense need not prove the content of the CI’s prospective testimony, nor even that the testimony
would be favorable to the defendant.8
However, bare speculation or unsupported conclusions that the
CI is a material witness are insufficient to satisfy the defendant’s burden. While the showing may be
by declaration, the defense often submits a declaration signed by counsel, containing conclusionary
statements made on information and belief. Such a declaration is inadequate.9
The defense must
produce evidence or a declaration articulating the defense theory or demonstrating in what manner he
would be benefited by disclosure of the CI’s name.10
4. Defense theories supporting disclosure
If the defense proves the CI was a percipient witness to the crime, they have met their burden of
showing materiality. Additionally, a CI who was not a percipient witness can still be shown to be a
material witness.11 Here, the evidence or theory offered by the defense must be analyzed to
determine if it is logical and if it is consistent with available evidence.
Theories advanced by defenses for disclosure are frequently inadequate. The following are some
questions which might be used to test a defense’s theories:
a. Did the CI merely point the finger of suspicion?
The courts have often held that a CI was not a material witness when the CI simply pointed a
finger of suspicion toward a person who has violated the law.12 A common example of this is
when a CI observes drugs or drug sales in a defendant’s residence, and this observation is
used to support issuance of a search warrant. If the defendant is charged with possession for
sale of the drugs found only during the subsequent search, the courts have often held that
what the CI might say is irrelevant since the defendant is charged with possession for sale on
the date of the search rather than the date the CI was contacted by the defendant.13
b. Is disclosure being sought to attack probable cause?
Defendants sometimes request the identity of the CI in order to attack probable cause based
upon the information supplied. It is well settled that California law does not require disclosure
of the identity of a CI who merely supplied probable cause where disclosure is sought to aid in
attacking probable cause.14
B. Overcoming Defendant’s Prima Facie Showing
Where the defense is able to demonstrate a reasonable possibility a CI was a material witness, the
deputy may prevail by defeating defense’s prima facie showing in open court. A deputy may offer
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 7-3
evidence which demonstrates the falsity of the theory advanced by the defense, provided such
evidence would not tend to disclose the CI. For example, defendant’s assertion the CI was a
percipient witness to the crime may be defeated by testimony that demonstrates the CI was not one
of the persons present. An assertion the CI may have mistaken the defendant for someone else might
be defeated by testimony that the CI pointed defendant out in the presence of an officer and correctly
identified him by name.
C. In Camera Hearings
If a court rules the defense has met its burden on the issue of materiality, the court will order
disclosure. To avoid disclosure, you should request an in camera hearing pursuant to Evidence Code
section 1042(d).
1. Requesting an in camera hearing
When an in camera hearing has been requested, a court must grant that request and conduct the
hearing outside the presence of the defendant and his counsel.15 Such a hearing can be requested at
any stage of the proceedings, but is unnecessary until the court has ruled defense has discharged his
burden to make a prima facie showing.
The in camera procedure described in Evidence Code section 1042(d) provides a method for
demonstrating to the court, out of the hearing of defendant or his counsel, that non-disclosure of the
CI’s identity would not deprive the defendant of a fair trial. While the open court hearing deals in
reasonable possibilities, the in camera hearing allows the deputy, without fear of disclosure, to focus
on whether the CI can actually exonerate the defendant. Where the hearing reveals the CI’s
evidence would be incriminatory rather than exculpatory, the court should not order the disclosure.16
Thus, a CI is not a “material witness” nor does his nondisclosure deny the defendant a fair trial where
the CI’s testimony although “material” on the issue of guilt could only further implicate rather than
exonerate the defendant.17
2. Conduct of the in camera hearing
At the in camera hearing, the deputy may produce either the CI or another witness to provide
evidence of the CI’s relationship to the defendant, or circumstances of the crime. There is no
requirement that the CI testify.18 But, in most cases, it will be necessary to offer the confidential CI as
a witness in the in camera hearing since only he or she can testify to his or her knowledge of the
case.
19
The CI should not be produced for the open court hearing of the motion to disclose. Once the court
has ruled the defense has made its required showing, the deputy should request that the open court
hearing be continued for a reasonable time, two weeks if possible, to arrange for the presence of the
CI at the in camera hearing without jeopardizing the CI’s anonymity. The deputy is responsible for
arranging the later in camera hearing and for the investigating officer to contact and produce the CI.
Of course, an in camera hearing is not conducted in an open courtroom. Frequently, an in camera
hearing is conducted in the judge’s chambers, although the deputy may wish to request another
Page 7-4 Motions to Disclose the CI June 1997
location to minimize the chance of an encounter with the defendant or defense counsel. The judge,
deputy, CI or other witness, investigating officer and court reporter are the only persons who should
be present at the hearing. Defendant’s counsel has no role, direct or indirect, in the hearing and relief
should be sought if a court permits him any role.20
The deputy should request the court to order the reporter’s notes of the hearing sealed so no
transcript or copies can be produced without a court order. The court must seal those notes pursuant
to Evidence Code section 1042(c), and the Superior Court has adopted procedures relating to sealed
court records. If a judge contemplates unsealing such records, the deputy district attorney assigned
will be notified. The deputy district attorney should make his or her objection to unsealing known to
the judge immediately.
At the in camera hearing, the CI or other witness must be sworn prior to giving testimony. The deputy
should elicit the CI’s knowledge, and any information of a potential threat to the well-being of the CI.
If the evidence demonstrates that the CI’s testimony will neither tend to exonerate the defendant nor
deprive him of a fair trial, the court should not order disclosure. The identity of a CI who is a
percipient witness may even be withheld if the CI cannot exonerate the defendant.21
At the next open court session, the judge should announce the court’s ruling on the disclosure issue.
The ruling will be based on evidence he has heard at both the open court and in camera hearings.22
D. Sanction for Nondisclosure
If the court concludes the CI is a material witness and nondisclosure would deprive defendant of a
fair trial, the court will order disclosure. The usual sanction for a failure to disclose is dismissal of
charges against the defendant.23 Any such dismissal should involve only those counts to which the
CI’s testimony relates. Furthermore, if the CI’s testimony would tend to exonerate defendant only as
to an element which distinguishes the charged offense from a lesser included offense, only the greater
should be stricken. A common example occurs when the CI’s testimony might tend to exonerate the
defendant of an intent to sell narcotics, but not of simple possession. Only the greater offense need be
stricken for failure to disclose.24
E. Motions to Disclose a Cooperating Individual’s Address
In cases where a CI testifies or the CI is otherwise disclosed, defendants often demand the CI’s
home address. Ordinarily, this request should be resisted. Similarly, in some cases where a witness
may be in jeopardy if his or her address is disclosed to a defendant, the deputy should vigorously
oppose the release of such information.
The address of any witness may be withheld if there is evidence of a substantial danger to the
witness which outweighs the defendant’s need for access, or if adequate alternative evidence is
available to place a witness In his proper setting.25 If the address is desired only to make a witness
available, agreement by the deputy to arrange for the witness’s availability will be adequate.26
Where the witness/CI’s home address or phone number is to be provided, appropriate notice must
first be given to the CI or his controlling agent. (See chapter 3, section C.) Defendant’s counsel
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 7-5
should be reminded of his duty under Penal Code section 1054.2 not to disclose this information to his
client.
Endnotes
1. Similarly, see People v. Flemmings (1973) 34 Cal.App.3d 63.
2. Evid. Code, ' 1041(b).
3. See People v. Flemmings, supra; People v. Johnson (1970) 13 Cal.App.3d 742.
4. People v. Seibel (1990) 219 Cal.App.3d 1279, 1289.
5. See Evid. Code, ' 1042(d).
6. People v. Wilks (1978) 21 Cal.3d 460, 468; Honore v. Superior Court (1969) 70 Cal.2d 162, 168.
7. Price v. Superior Court (1970) 1 Cal.3d 836, 843.
8. Id.
9. People v. Oppel (1990) 222 Cal.App.3d 1146, 1153.
10. People v. McCoy (1970) 13 Cal.App.3d 6, 12-13; People v. Thomas (1970) 12 Cal.App.3d 1102, 1112-1113.
11. Williams v. Superior Court (1974) 38 Cal.App.3d 412, 420-421.
12. See People v. Wilks, supra, at p. 469.
13. See, e.g., People v. Dimitrov (1995) 33 Cal.App.4th 18, 30-31; People v. Lizarraga (1990) 219 Cal.App.3d 476,
482-483; People v. Fried (1989) 214 Cal.App.3d 1309, 1315-1317; People v. Rodgers (1976) 54 Cal.App.3d 508;
People v. Acuna (1973) 35 Cal.App.3d 987; People v. Hambarian (1973) 31 Cal.App.3d 643.
14. People v. Luttenberger (1990) 50 Cal.3d 1, 24; Theodor v. Superior Court (1972) 8 Cal.3d 77, 88; People v.
Siebel (1990) 219 Cal.App.3d 1279, 1288; People v. Sewell (1970) 3 Cal.App.3d 1035, 1038; see also, Evid. Code, '
1042, subds. (b) and (c).
15. People v. Reel (1979) 100 Cal.App.3d 415, 420; People v. Aguilera (1976) 61 Cal.App.3d 863; Evid. Code, '
1042(d).
16. People v. McCarthy (1978) 79 Cal.App.3d 547, 552-555.
17. People v. Alderrou (1987) 191 Cal.App.3d 1074, 1080-1081; similarly, see People v. Lanfrey (1988) 204
Cal.App.3d 491, 500-503.
18. People v. Fried (1989) 214 Cal.App.3d 1309, 1313-1314; People v. Alderrou, supra, at 1079.
19. See People v. Coleman (1977) 72 Cal.App.3d 287, 298.
20. See People v. Galante (1983) 143 Cal.App.3d 709, 712
21. See People v. Lanfrey, supra; People v. Alderrou, supra; People v. Coleman, supra; People v. Pacheco
(1972) 27 Cal.App.3d 70.
22. People v. Coleman, supra, at pp. 297-298; Evid. Code, ' 1042(d).
23. People v. Wilks, supra, at p. 468.
24. People v. Long (1974) 42 Cal.App.3d 751; People v. Lamb (1972) 24 Cal.App.3d 378, 382.
25. See People v. Castro (1979) 99 Cal.App.3d 191; People v. Patejdl (1973) 35 Cal.App.3d 936; People v.
Mardian (1975) 47 Cal.App.3d 16, 41.
26. People v. Rios (1977) 74 Cal.App.3d 833, 837.
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 8-1
IMMUNITY
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A. Introduction
Immunity can be a very powerful tool for the prosecution. By overcoming a witness’s refusal to
incriminate himself, it can make testimony available to the prosecution without which a conviction
could not be obtained in some cases. It is, however, an area where an unskilled or careless deputy can
create untold additional problems for himself, or lose the case. In a 1976 San Diego murder case, a
suspect who came forward insisting he was only a witness admitted, after he was granted immunity,
that he also had stabbed the victim. He went free!
Immunity may also tend to reduce the credibility of a witness in the eyes of the jurors. The use of
immunity for witnesses who did not really want or need it may transform an ordinary witness into an
immunized accomplice who should automatically be distrusted. Many other problems relate to the
nature of a witness who is, himself, involved in a criminal enterprise. Clearly, immunity is a tool which
should be used very sparingly.
California has long had a statutory procedure to request immunity for a witness. But the courts have
recognized that a deputy has inherent power to grant immunity by a simple oral promise to a witness.
Because an informal grant of immunity is so easy to do, it is also easy to abuse.
CI Guideline 26: All promises of immunity must be approved by the division chief. In
significant cases, the division chief will consult the District Attorney, Assistant District
Attorney, or Chief Deputy District Attorney.
B. Use vs. Transactional Immunity
There are two basic kinds of immunity: (1) transactional immunity and (2) use and derivative use
immunity.
1. Transactional immunity
Until recently, California’s immunity statute for felony prosecutions, Penal Code section 1324,
provided only transactional immunity to a witness. As previously written, the statute granted
immunity from prosecution for any fact or act concerning which the witness was required to answer.
Chapter
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Page 8-2 Immunity June 1997
Transactional immunity means that an immunized witness cannot be prosecuted for any act or event
described or referred to in the compelled testimony, so long as the testimony was within the scope of
the grant of immunity, even if independent evidence has come to light.1
However, a witness granted
transactional immunity can still be prosecuted for perjury or contempt of court for refusing to answer.2
2. Use immunity
The Legislature agreed, in AB 988, with efforts made for many years by prosecutors to amend
section 1324 to provide for use immunity. This amendment, which became effective on January 1,
1997, provides California prosecutors the same powerful tool previously available to federal
prosecutors and prosecutors in 30 other states. These rules provide for use and derivative use
immunity which means that no compelled testimony, and no evidence derived from the compelled
testimony, may be used if the person is subsequently prosecuted on independent evidence for the
offense. This narrower form of immunity has been held to be coextensive with the scope of the
privilege against self-incrimination and, hence, sufficient to compel testimony over a claim of
privilege.3
Thus, California courts may now compel a witness to testify through a non-consensual
grant of use and derivative use immunity.
Use and derivative use immunity favors the prosecution because a witness who receives such
immunity can still be prosecuted for a crime to which the immunized testimony relates. However, if
the witness challenges the source of the prosecution evidence, the prosecution has an affirmative duty
to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of
the compelled testimony.4
While the leading case of Kastigar v. United States (1972) 406 U.S. 441,
speaks of the prosecution’s heavy burden to prove the independent source of prosecution evidence,
the majority of courts have held that the burden of proof is by a preponderance of the evidence.5
C. Authority to Seek a Grant of Immunity
1. The prosecutor’s monopoly
Authority to seek a grant of immunity is given only to the District Attorney or the Attorney General.
Essentially, immunity is the prosecutor’s sacred weapon; the prosecution alone controls the
invocation of the immunity statute.
6
Because the decision to seek immunity is an integral part of the
charging process, no judicial authority is usurped.7
Thus, a defendant has no right to demand
immunity for a prospective defense witness.
8
Moreover, this rule does not violate a defendant’s
right to equal protection or other constitutional guarantees.
2. Defendant’s standing
A defendant ordinarily has no standing to object to the deputy’s application to immunize a witness; the
defendant cannot prevent testimony from an immunized witness by arguing to the trial judge that the
government is improperly granting immunity.9
Nor does the defense have standing to object to an
agreement between the prosecution and a witness for partial immunity.10 The privilege against self[1]incrimination is personal to the person who invokes it and immunity affects only that person. Unless
the immunity amounts to an improper coercion of the witness’s testimony or demonstrably affects the
nature of that testimony, the defendant has no interest in complaining.11
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 8-3
3. Protection against federal incrimination
The constitutional privilege against self-incrimination protects a state witness against incrimination
under federal as well as state law and a federal witness against incrimination under state as well as
federal law.12 Thus, a witness granted immunity under Penal Code section 1324 may be compelled to
testify despite a claim he might be subjected to federal prosecution. The federal government is
prohibited from making any use of the compelled testimony or its fruits in a criminal prosecution
against the witness and, therefore, the witness can be compelled to testify in the state proceeding.13
4. Immunity in civil cases
In Daly v. Superior Court (1977) 19 Cal.3d 132, the California Supreme Court held that a witness
can be compelled to answer questions in a civil proceeding if granted use and derivative use immunity
so long as the immunity does not unduly hamper the criminal prosecution.14 However, the court held
the prosecution has a right to notice and the opportunity to object.15 Notice must be sent to the
District Attorney, the California Attorney General and the local United States Attorney. Any or all of
those prosecutors may file a declaration opposing the application for immunity. The prosecution’s
objection is final. It conclusively establishes that the immunity order cannot be issued.16 A deputy
receiving a request for immunity in civil proceedings must refer the matter to his division chief.
D. California’s Immunity Statute (Pen. Code, d 1324)
Section 1324 can be reduced into several manageable component parts for analysis:
1. Type of Proceeding. Section 1324 applies in any felony proceeding or in any investigation or
proceeding before a grand jury for any felony offense.
2. Compulsory Testimony and Claim of Privilege. Section 1324 applies if a person refuses to
answer a question or to produce evidence of any kind on the ground that he may be incriminated
thereby.
3. Procedure to Compel Testimony. The statute is invoked if the District Attorney in writing
requests the court to order that person to answer the question or produce the evidence. The judge
then sets a time for hearing and issues an order to show cause. The procedures are more fully
explained in section E, “Procedure for Obtaining Immunity.”
4. Discretion of Court. The court shall order the question answered or the evidence produced
unless it finds doing so would be clearly contrary to the public interest, or could subject the witness
to a criminal prosecution in another jurisdiction. Thus, if there are no compelling reasons against it,
the court must accede to the request and compel the testimony.
5. Immunity Coextensive With Privilege. After complying with the order to testify, “. . . no
testimony or other information compelled under the order or any information directly or indirectly
derived from the testimony or other information may be used against the witness in any criminal
case.” Although this language mentions use immunity only, the last sentence of AB 988 permits
the District Attorney to request use or transactional immunity.
6. No Immunity From Perjury or Contempt. A witness who has been granted immunity may
nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury, false swearing or
Page 8-4 Immunity June 1997
contempt committed in answering, or failing to answer, or in producing, or failing to produce
evidence in accordance with the order. A witness who has derived the benefits of immunity and
who has testified must be prepared to answer relevant probative questions.17
E. Procedure for Obtaining Immunity
1. Validity of the claim of privilege
Sometimes a witness may attempt to claim the privilege where it does not exist. If the question is one
which is incriminatory on its face, no difficulty is presented in upholding the privilege. But if the
question does not clearly call for an incriminating answer, the witness has no unqualified right to assert
the danger of incrimination or refuse to answer. The court must determine the danger of incrimination,
and the burden of showing that the proffered evidence might tend to incriminate him falls upon the
person claiming the privilege.18 But the standard set by Evidence Code section 404 is that, the
proffered evidence is inadmissible unless it clearly appears to the court that the proffered evidence
cannot possibly have a tendency to incriminate the person claiming the privilege.
In substance, it is agreed that the court must be satisfied from all the evidence and circumstances, and
from the implications of the question, in the setting in which it is asked, that a responsive answer to the
question, or an explanation of why it cannot be answered, might be dangerous because injurious
exposure would result.19 The trial judge in appraising the claim must be governed as much by his
personal perception of the peculiarities of the case as by the facts actually in evidence.’20
2. Necessity for the privilege
Although a witness’s testimony might tend to incriminate, a grant of immunity may still be
unnecessary. Often, a witness is willing to testify to facts which may incriminate him to some degree,
without immunity. A witness may waive his privilege by testifying fully without objection to any
questions; if he desires the protection of the privilege, he must claim it.21
There may also be an implied or constructive waiver from partial disclosure of incriminating facts. By
voluntarily answering questions as to some of the facts of a transaction involving criminal conduct, the
witness is held to have waived the privilege not only as to these, but as to all other facts connected
with that transaction.22
But concern about possible prosecution may be avoided by those uninvolved or so minimally involved
in a criminal act that we may have no intention of prosecuting. Such persons may ask about immunity
during an interview or when the defense attorney raises the issue in court. Immunity is not always the
answer. If there is no reasonable possibility of self-incrimination, this fact should be emphasized.
Where the witness’s involvement is so minimal that there is no intention to prosecute, the witness or
judge may properly be answered that this is not our intention. This will usually resolve the issue. But if
the witness or judge persists, a recess will have to be requested for consultation with a supervisor. If
immunity is truly warranted, it should be done according to Penal Code section 1324.
3. Alternatives to immunity
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 8-5
Where the witness’s testimony will incriminate him, other viable alternatives must be
considered. These alternatives include the promise of other benefits such as a favorable plea bargain,
a favorable position in sentencing, or a promise not to seek probation revocation.
4. Propriety of immunity
The next question which must be answered is whether or not a witness should be given immunity.
Three major factors should be considered: (1) Whether the witness’s testimony is essential to a
successful prosecution; (2) Whether the gravity of the offense is such as to justify granting immunity;
and (3) Whether the witness is less culpable than other persons charged. In determining the witness’s
culpability, a deputy must consider the witness’s involvement in the present case, the witness’s overall
criminal record, and his cooperation in the present case.
One court warned of dangers in giving immunity to certain witnesses:
“The first is that of the treacherous witness who promises to testify in return for a
grant of immunity from prosecution and then, having secured immunity, does not
testify in the manner he said he would or refuses to testify beyond a certain point. It is
a fact of life that the quality of veracity and honor among thieves and murderers
leaves something to be desired, and an overly trusting district attorney may find that in
granting immunity to one he could have prosecuted he has exchanged his gold for
brass.”23
5. Petition and hearings
The need for immunity must be anticipated by the deputy. This means that if immunity is approved by
his division chief, the deputy should prepare all appropriate pleadings prior to any court hearing at
which they may be needed. A Petition for Order Compelling Testimony of a Witness must be
prepared for filing. (Appendix “J.”) Choose the type of immunity sought by deleting the appropriate
language in the brackets [ ].
At the hearing, the witness should be called to the stand outside of the jury’s presence. The witness
should be asked several substantive questions to illustrate the subject matter of the witness’s
testimony. When the witness asserts the privilege, clarify that the witness is refusing to testify.
Effective January 1, 1997, both the superior court and the municipal court have jurisdiction to hear the
immunity issue. If the matter is before the Grand Jury, the deputy must request a recess and ask the
foreman to direct the witness forthwith to the Presiding Department of the Superior Court
(Department One of the downtown courthouse).
An Order to Show Cause, prepared by the deputy, should be issued by the court upon the witness.
(Appendix “K.”) A cooperative witness can substantially expedite the immunity procedure by signing
a Waiver of Hearing. (Appendix “L.”) But an uncooperative witness can request and receive a
continuance to show cause why immunity should not be granted. The continuance may delay the
underlying prosecution or require the case to proceed without the witness.
A deputy must demonstrate that the witness has concrete knowledge of the subject matter, which
may be difficult when the witness is uncooperative. Police reports or prior statements made to other
witnesses may be used for this purpose. An offer of proof is made in the form of a Petition for Order
Page 8-6 Immunity June 1997
Compelling Testimony of a Witness. (Appendix “J.”) At this point, the burden shifts to the witness to
show cause why he should not be compelled to testify. Ordinarily, the court will appoint an attorney to
represent the witness.
6. The order to testify
At the conclusion of the hearing, if the People prevail, the court will issue the Order Requiring
Witness to Answer Questions. (Appendix “M.”) In preparing the order, choose the type of immunity
to be granted by deleting the appropriate language in the brackets [ ].The witness should be directed
by the court to reappear for testimony. When court reconvenes and the witness resumes the stand, he
should be reminded of his compulsion to testify under the contempt powers of the court. The court has
the power to hold the witness in contempt for refusing to answer under section 1219 of the Code of
Civil Procedure or section 166 of the Penal Code.
F. Informal or “Hip-Pocket”
1. Compelled informal immunity
The only statutory authority for immunity in California is the formal procedure established by Penal
Code section 1324. If a witness is uncooperative, and refuses to testify without immunity, the Fourth
District Court of Appeal has held that the prosecutor does not have the unilateral right to grant
immunity outside the statute.
24
“Properly used, section 1324 is broad enough to protect the prosecutor against double[1]dealing and enable him to make an enforceable agreement with the most duplicitous
witness. Properly used, the section also protects the witness against prosecution
pressure to color existing or create additional testimony in order to obtain previously
promised immunity.”25
Informal immunity is too often hasty, ill-considered and, because it is usually made orally, difficult to
limit and define when the issue comes up in testimony. In short, attempts to compel an unwilling
witness to testify through any form of informal or “hip-pocket” immunity are not only legally
worthless, they are also prohibited by the District Attorney.
2. Letter immunity with a cooperative witness
Immunity may be employed outside of Penal Code section 1324 provided the witness agrees and is
cooperative. One type of informal immunity which may be used in special cases, with the express
approval of the division chief is letter immunity. Although such an immunity does not comply with
the formalities of the statute, it avoids most of the dangers of informal immunity. Because a letter of
immunity is carefully drafted, it avoids the confusion of oral immunity. Letters of immunity are
appropriate only in cases where the witness and court are satisfied with informal immunity and
the witness is considered entirely trustworthy and cooperative. (See Appendices “N1” and
“N2.”)
Note, that if the witness agrees, use and derivative use immunity may be used in place of statutory
transactional immunity. Carefully drafted written agreements should be used. The agreement is not
enforceable until it has been accepted or relied upon by the witness.26
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 8-7
G. Immunity in Misdemeanor Cases
Penal Code section 1324.1 allows a witness to give testimony in any misdemeanor proceeding in any
court in return for immunity. After claiming the privilege, the witness may agree in writing with the
District Attorney to voluntarily testify. On the written request of the deputy, the judge shall approve
the agreement unless he finds doing so would be clearly contrary to the public interest. The significant
difference between this section and 1324 is in the area of sanction for noncompliance. Since there is
no order compelling him to testify, the witness who refuses after agreeing merely loses his or her
immunity; the witness may be prosecuted in the same manner and to the same extent as he or she
would be but for this section. Of course, if a witness has been given immunity under section 1324 and
the case is subsequently reduced to a misdemeanor, the witness may still be compelled to testify.
H. Drafting the Grant of Immunity
“[T]he prosecutor’s request for court approval should set out the terms of the
agreement, the subject matter of the testimony, the proceedings at which it will be
given, the representations of the witness (or his counsel) as to the specific content of
his testimony, and the promise of the witness to testify fully and truthfully in return for
the promised grant of immunity. On court approval of the agreement immunity will be
granted the witness after he has complied with the representations of the
agreement.”27
1. Avoiding witness intimidation
A deputy must be very careful to avoid witness intimidation problems. Carelessness can lead to
allegations of abuse or suppression of the immunized witness’s testimony.
Of course, immunity conditioned solely upon the content of the witness’s testimony may create
improper pressure. In People v. Medina (1974) 41 Cal.App.3d 438, the immunity was conditioned
upon the witness not materially or substantially changing his testimony from the tape-recorded
statement already given to the officers, or not to feign lapse of memory. Otherwise, the immunity was
of no effect. The court held the defendant was denied his right to a fair trial28
When discussing immunity with a witness or any representative of the witness, a deputy must make a
careful record of the conversations which occurred. Careful preparation and tape recording of
such conversations are a must. Otherwise, the immunized witness’s recollections of a deputy’s
incautious words may come back to haunt the deputy.
The enticement of immunity alone may cause some to change the facts to suit the prosecution:
“[A] witness may be so influenced by his hopes and fears that he will promise to
testify to anything desired by the prosecution in order to obtain a grant of immunity.
Because the satisfaction of the prosecutor is the witness’s ticket to freedom, the
prosecutor, by dangling the promise of immunity, can put the words he wishes into the
witness’s mouth. This danger is especially grave when the witness knows he is
Page 8-8 Immunity June 1997
expected to give particular testimony, absent which he will not receive the promised
immunity.”29
In any event a deputy must not grant or deny immunity with the deliberate intention of distorting the
judicial fact finding process.30
2. Writing limits into the grant
Care must be taken to limit the terms of a grant of immunity. For example, the immunity order may be
limited to designated crimes on or between specific dates. The order should not be a blanket immunity
covering all criminal acts of the witness.31
In People v. Thompson (1983) 145 Cal.App.3d 918, the District Attorney made it clear that the only
transaction covered by the immunity grant was a particular murder, and that any evidence of an
unrelated robbery was not within the scope of the immunity. The trial court ordered, at the district
attorney’s request, use immunity for any testimony about the robbery. The court held that it is within
the sole discretion of the district attorney to limit the grant of transactional immunity as he sees fit in
exchange for the testimony . . .32 Therefore, on appeal from the robbery conviction, defendant’s
contention that he had received transactional immunity as to that crime was denied.33
A grant of immunity may also be conditioned on the witness being only a peripheral participant and not
a principal perpetrator. In People v. Yu (1983) 143 Cal.App.3d 358, 367-369, a prosecutor offered a
grant of immunity to a witness and later prosecuted the witness as a principal.
In conclusion, it is clear that immunity is an important tool in the prosecutor’s arsenal. Once fully
understood, and after careful consideration that its use is appropriate and no other reasonable
alternatives remain, granting immunity should be employed, albeit sparingly.
Endnotes
1. People v. Campbell (1982) 137 Cal.App.3d 867, 874.
2. Penal Code sections 1099 and 1101 provide another form of transactional immunity for trials of jointly charged
defendants. In such cases the court may, on application of the deputy at any time before the defendants begin
their defense, direct any defendant to be discharged so that he may be a witness for the People. Such an order
is an acquittal of the defendant discharged and is a bar to another prosecution for the same offense.
3. Kastigar v. United States (1972) 406 U.S. 441, 452.
4. Id., at p. 460.
5. U.S. v. North (D.C. Cir. 1990) 910 F.2d 843; see People v. Gwillim (1990) 223 Cal.App.3d 1254, 1266.
6. See People v. Thompson (1983) 145 Cal.App.3d 918, 923.
7. In Re Weber (1974) 11 Cal.3d 703, 720.
8. In re Williams (1994) 7 Cal.4th 572, 609-610; In re Weber, supra; People v. Traylor (1972) 23 Cal.App.3d 323,
331-332.
9. People v. Wisely (1990) 224 Cal.App.3d 939, 943-944.
10. People v. St. Joseph (1990) 226 Cal.App.3d 289, 298-299.
Third Edition COOPERATING INDIVIDUALS AND IMMUNITY Page 8-9
11. People v. Wisely, supra, at p. 944.
12. Murphy v. Waterfront Commission (1964) 378 U.S. 52.
13. Nelson v. Municipal Court (1972) 28 Cal.App.3d 889,892.
14. Id. at p. 147.
15. Id. at p. 148.
16. Ibid; see also, People v. Superior Court [Kaufman] (1974) 12 Cal.3d 421; Gonzalez v. Superior Court (1980)
117 Cal.App.3d 57, 69-70. Certain kinds of judicially granted use immunity have long existed in California. These
have included testimony give at search and seizure motions (People v. Douglas (1977) 66 Cal.App.3d 998.);
compelled internal affairs statements (Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822.); probation
revocation proceedings (People v. Coleman (1975) 13 Cal.3d 867.); and certain statements made in juvenile
proceedings (In re Jessica B. (1989) 207 Cal.App.3d 504; Ramona R. v. Superior Court (1985) 37 Cal.3d 802.).
17. People v. Hathcock (1971) 17 Cal.App.3d 646, 650.
18. Evid. Code, ' 404; see Cohen v. Superior Court (1959) 173 Cal.App.2d 61.
19. United States v. Reynolds (1953) 345 U.S. 1.
20. Cohen v. Superior Court, supra, at p. 70.
21. United States v. D (1931) 284 U.S. 141; People v. Barker (1965) 232 Cal.App.2d 178, 181.
22. Brown v. United States (1958) 356 U.S. 148; People v. St. Joseph (1990) 226 Cal.App.3d 289, 298; Regents of
Univ. of Calif. v. Superior Court (1962) 200 Cal.App.2d 787, 791.
23. People v. Brunner (1973) 32 Cal.App.3d 908, 913-914.
24. People v. Superior Court (Perry) (1989) 213 Cal.App.3d 536, 539-540. The Perry court disagreed with
People v. Superior Court [Crook] (1978) 83 Cal.App.3d 335, 340-341, which reached the opposite conclusion.
25. People v. Brunner, supra.
26. See People v. Superior Court (Perry), supra, at p. 540.
27. People v. Brunner, supra.
28. People v. Medina (1974) 41 Cal.App.3d 438, 455-456; see also People v. Badgett (1994) 24 Cal.App.4th 1590.
29. People v. Brunner, supra.
30. People v. Hunter (1989) 49 Cal.3d. 957, 974-975; People v. Garner (1989) 207 Cal.App.3d 935, 942.
31. People v. Label (1974) 43 Cal.App.3d 766.
32. People v. Thompson, supra.
33. See also, People v. St. Joseph, supra, at p. 298. Although the court in People v. Superior Court (Perry),
supra, at p. 541, footnote 4, rejected the Thompson court’s application of use immunity, AB 988 will validate this
approach.
