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MOTION TO COMPEL IDENTITY OF CONFIDENTIAL INFORMANT

NORTH CAROLINA                   IN THE GENERAL COURT OF JUSTICE

                  SUPERIOR COURT DIVISION

FORSYTH COUNTY    

STATE OF NORTH CAROLINA,    

         MOTION TO REVEAL WITNESS IDENTITY

vs

     

Defendant.   

Now comes the defendant, DEFENDANT, by and through counsel, and moves this Court for an order requiring the State to provide to Defense Counsel the name and contact information of the confidential informant listed as a witness in the State’s prosecution file.  In support of this motion the defendant shows unto the Court as follows:

1.   Defendant is currently charged with possession with intent to sell or deliver cocaine and sale of cocaine.

2.   The alleged transaction in this matter occurred between the defendant and another individual named in the State’s file as a confidential informant, nick named Austin.

3.   According to the State’s discovery file Austin conducted a transaction the defendant while in a vehicle and seated beside an undercover narcotics officer.  The entire sale and bargaining for said sale was conducted between Austin and allegedly the defendant.  4. Counsel for the defendant is in need of the name and contact information of this transactional witness in order to adequately prepare defendant’s case for trial, particularly with regard to exploring and developing any impeachment material as it relates to the Confidential Informant Austin.


                           Argument

The United States Supreme Court has held that the Prosecution must disclose an informant's identity in cases in which the informant actively participated and/or was a percipient witness to the underlying act or transaction which serves as a basis for prosecution.  Roviaro v. United States, 353 U.S. 53 (1957). It has also been held that the Prosecution must reveal the identity of an informant if the defendant demonstrates that the identity of the informant would be helpful to the defendant's defense or essential to the fair determination of the case.  United States v. Sanchez, 908 F.2d 1443 (9th Cir. 1990).

The Supreme Court of North Carolina has also ruled that the disclosure of an informant's identity "is required where the informer directly participates in the alleged crime so as to make him a material witness on the issue of guilt or innocence." State v. Ketchie, 286 N.C. 387, 390, 211 S.E.2d 207, 209 (1975).  See also, State v. Cheek, 351 N.C. 48, 520 S.E.2d 545 (1999).   In this case, the situation fits both scenarios.  The cooperating witness was the actual party conducting the transaction.  Thus he was actively involved in the underlying acts with which the defendant is charged, the drug transaction.


Further, the identity of this witness is of crucial importance to the defense in that the case as it now appears will consist entirely of the testimony of a single narcotics officer’s identification of the defendant, whom he had never seen before, in the dark, and without arresting the defendant until several days later, based almost entirely on the identification of the defendant by the confidential informant.  According to the State’s file the confidential informant allegedly knows the defendant and identified him at the time of the transaction.  Thus the best evidence of the State is the confidential informant.  Such witnesses have inherent biases and prejudices which may be brought out on cross-examination only by thorough advance preparation and investigation.  Such advance preparation will be virtually impossible if the identity of the witness is kept secret until and unless he takes the stand.

Wherefore, the defendant moves this Court for an order requiring the Prosecution to produce to defense counsel the name of the unidentified cooperating witness now listed in the Prosecution's file and who implicates the defendant.

This, the ______ day of __________, 20____.

By________________________________

  Paul M. James, III

  Assistant Public Defender

  Office of the Public Defender,

  Forsyth County

  Suite 400, 8 West Third Street

  Winston-Salem, NC  27101

  Telephone: (336) 761-2510


CERTIFICATE OF SERVICE

This is to certify that the undersigned has this date served this paper (Defendant's Motion to Reveal CI) in the above-entitled action upon all other parties to this cause by hand delivering a copy hereof to the Office of the Forsyth County District Attorney properly addressed to:

 

Assistant District Attorney

Fifth Floor

Forsyth County Hall of Justice

Winston-Salem, NC  27101

This, the ________ day of _________________, 20____.

__________________________________

Paul James

 

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