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)

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

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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

Chapter

7

Page 7-2 Motions to Disclose the CI June 1997

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

8

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.