Part III, How to Handle the Video – North Carolina Criminal Law

This is Part III of a multi-part series on confidential informants. Earlier posts focused on the foundational concepts of U.S. v. Roviaro, 353 U.S. 53 (1957), here, and the applicable North Carolina statutes here. Today’s post explores the novel issues that arise as more and more confidential informant (“CI”) interactions are recorded on video.

The tension between concealing the CI’s identity for the CI’s protection and revealing the CI’s identity to ensure that the defendant has a fair opportunity to challenge the State’s case has been highlighted in earlier posts. However, the existence of video evidence introduces new complexity and nuance into the dilemma. Where the State attempts to withhold video evidence depicting the CI’s involvement, defense counsel may justifiably object that a rich trove of information from the investigative file is being denied to the defendant in contravention of G.S. 15A-903 (“Disclosure of Evidence by the State”). The video may contain key details such as location, pattern of behavior, body language, or statements (when the video includes audio). The State may counter that turning over the video all but assures that the CI will be put in danger, as even where the CI’s name is kept secret, the CI’s face, appearance, or other identifying information may be gleaned from the recording.

Four options

The following four options of limiting or modifying disclosures may be useful in balancing the competing concerns while navigating constitutional and statutory requirements. For the court to approve of the options below, the State must likely make an adequate showing of “substantial risk” to a person of “physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment,” under G.S. 15A-908.

1) Blurring out. When technologically feasible, this is an appealing option in some cases, as modifying the video by blurring the CI’s face may allow the defense to receive much of what is useful on the video, while shielding the identity of the CI. G.S. 15A-908 may authorize such a modification. The statute contemplates situations where the court can allow the State to withhold entire portions of the investigative file. Withholding only a face on a video is a lesser measure that may strike an appropriate balance between concerns of CI safety and disclosure of evidence to the defense. Of course, the defense may still be able to articulate compelling reasons why the original, unblurred footage must be turned over, and may be constitutionally entitled to the unedited video, depending on the facts of the case.

2) Redaction. Similar to the blurring option above, sharing portions of the video but “cutting out” segments that tend to reveal the CI’s identity could be a potential solution. Defense counsel may have concerns that key portions are being withheld, and the court may choose to exercise caution by reviewing the entire video in chambers after hearing arguments to ensure that the correct balance is struck. The court may also receive the entire video under seal to allow for appellate review of the decision to withhold discovery (note that G.S. 15A-908(b) appears to contemplate sealing and preserving the State’s “supporting affidavits and statements” rather than the video footage itself, but it would seem proper to receive the video footage under seal with appropriate safeguards).

3) Muting. Muting portions of a video to avoid revealing the CI’s identity could be another potential solution. Of course, as was the case in Roviaro, the specifics of what was said, especially in a drug transaction, could be critical in determining whether the defendant had knowledge of the substance sold, or whether some other defense, such as entrapment, exists. If so, the defendant may have a strong argument that the defense is entitled to the sound along with the visual. Related options include voice alteration or transcription of recorded statements.

4) Sharing video with defense counsel, but disallowing disclosure to the defendant. The court may issue a protective order covering the video, allowing defense counsel to view it but preventing the video from being shared with anyone not party to the case. In cases with heightened concern of danger, the protective order may go so far as to prohibit defense counsel from showing the video to the defendant. See G.S. 15A-908 (providing that the court may “restrict” discovery or inspection, or “make other appropriate orders”). My anecdotal sense is that this kind of protective order is used with some frequency in federal court.

On one hand, the solution is attractive in that it alleviates some of the concerns that the defense is being deprived of crucial information, while avoiding the risks that may arise when the defendant directly views the CI on the video or shares the footage with others.

On the other hand, this practice raises some thorny questions. For one, it seems likely that the defense lawyer would have to relate some of the details observed on the video to the client as a matter of providing effective assistance of counsel. Once sufficient details are shared, the defendant might discover the CI’s identity. For another, North Carolina is unusual among states in the relative emphasis our courts place on the client’s wishes when describing the principal-agent relationship between a client and defense attorney. See State v. Ali, 329 N.C. 394 (1991) (where lawyer and client come to an absolute impasse on tactical decisions, such as what jurors to strike, the client’s wishes must control). It is arguably problematic for the principal in the relationship—the client—to be denied access to an important piece of evidence, especially where he or she has important knowledge pertaining to the larger context of an interaction that the lawyer lacks. Furthermore, this kind of selective sharing of the video evidence could inject tension into the lawyer-client relationship and set the stage for a future claim of ineffective assistance of counsel. Nonetheless, this fourth option may be worth considering at times.

Two common types of video: “main event” and “lead-up buy”

The four approaches discussed above could be used when dealing with videos capturing CI activity. There are commonly two types of CI video: “main event” video and “lead-up buy” video.

“Main event” video. “Main event” video, or video depicting the actual drug transaction for which the defendant is indicted, is obviously highly relevant to the issues at trial, and on first blush, it is difficult to see how it could be constitutional to withhold video from the defense where it offers a front-row seat to the crime alleged. Recall that in Roviaro, the defendant successfully argued that the CI’s identity must be revealed, as the CI was directly involved in the alleged drug transaction between the CI/driver and the defendant/front seat passenger, and the officer crouching in the trunk was no substitute. If the transaction in Roviaro had been videotaped, and North Carolina’s open-file discovery statutory framework applied, it seems likely that the Roviaro Court would require the State to turn the video over.

However, state law has evolved somewhat since Roviaro, and the State might argue that recent caselaw allows it to withhold main event video footage, or alternatively, to provide  blurred or redacted video to the defense in the interest of protecting the CI’s identity. Several more modern North Carolina cases seem to require more of the defendant than floating possible defenses which could potentially be impacted by CI testimony (this seemed to be enough in Roviaro, where the court enumerated several “possible defenses”). For example, in State v. Dark, 204 N.C. App. 591 (2010) (discussed by my colleague, Jeff Welty, here), the Court of Appeals seemed to demand that the defendant put forward a specific defense and articulate how the CI’s testimony would have a bearing on that particular theory. In Dark, an undercover officer was driving the car, and the CI was also sitting in the car after arranging the drug transaction over the telephone. The drug transaction occurred between the defendant, who was standing outside the car, and the undercover officer/driver. In conducting the analysis of whether the CI’s identity should have been disclosed, the court emphasized the defendant’s failure to show how the CI’s testimony might resolve some contradiction between the defense’s theory and the State’s theory. Though the CI was a direct participant in the crime alleged and was present on scene, the Court of Appeals upheld the trial court’s decision allowing the State to withhold the CI’s identity. Comparing Dark with Roviaro, the State may argue that the analysis has evolved.

Where the main event video captures the defendant’s participation in the drug transaction, the State may argue that the case is open and shut, as common defenses such as identity, alibi, or mistake, are foreclosed. Where the defendant is unable to demonstrate how the CI’s testimony would support or undercut a theory of defense, it may be a more open question as to whether the CI’s identity (and the main event video) must be disclosed to the defense, even where the CI directly participated in the transaction at issue. See Dark; see also, State v. Watson, 303 N.C. 533 (1981) (upholding denial of disclosure of CI’s identity where “defendant made no showing… as to his particular need for knowing the identity of the source”).

Of course, such interpretation depends on state case law and the defense may argue that Roviaro and federal constitutional due process protections demand more. After all, where the CI is directly engaged in the hand-to-hand transaction on which the trial is based, characteristics such as truthfulness, motivation, and bias seem to be at least somewhat relevant in virtually every case. Often, the analysis will depend on the unique facts at play.

“Lead-up buy” video. Where the video of CI activity shows a series of controlled purchases designed to establish probable cause to search a particular location, the State has a stronger argument that the CI’s identity, and the video depicting the transactions, may properly be withheld. This argument is based on the original Roviaro dichotomy whereby tipster activity generally does not require disclosure of the CI’s identity, but direct participation generally does (despite the trend discussed above in Dark and Watson). The defense might argue that a series of purchases is more than mere “tipster” behavior, but the State can respond that it is appropriate to cabin off this activity as it only established a legal justification to search a given location and does not directly relate to the drugs at issue at trial. Thus, although G.S. 15A-908 must likely be invoked to withhold pieces of the investigative file, the State may be justified in seeking to prevent the defense from learning the CI’s identity through review of the lead-up buy video.

Crucially, the analysis changes significantly if the State seeks to introduce evidence pertaining to these lead-up buys at trial. The State may want to get these lead-up buys before the jury pursuant to Rule 404(b), to show defendant’s knowledge of drugs in the closet of a given house, opportunity to sell a given drug, or other possible uses under Rule 404(b). But where the State desires to include the lead-up buys in their case-in-chief, the defense argument becomes much stronger that the disclosure of the CI’s identity as well as video footage of the lead-up buys is necessary to ensure a fair defense and effective representation. As we will see in a future post on how these issues are playing out in federal trial courts, judges are much more reluctant to grant the government’s request to withhold video of lead-up buys if the government wishes to introduce evidence of these lead-up episodes at trial. See United States v. Loden, No. 1:18-cr-00016-HSM-SKL-2, 2018 WL 6308725 (E.D. Tenn. Dec. 3, 2018).  

Stay tuned for a closer look at how a federal district court reckoned with the thorny issues discussed above!