10th Circuit Addresses Due Process & Confrontation in Confidential Informant Case: Part 1

The 10th Circuit Court of Appeals addressed the issue of confidential informants in U.S. Robinson. The defendant was charged as being a felon in possession of a firearm after allegedly selling a gun to the confidential informant.

The Court addressed the issues of due process and the right to confrontation of witnesses.

The confidential information had serious mental health issues including the use of several prescription drugs. The Court reviewed the medical file in camera but refused to allow defense counsel to access the records.

The Court found that the Court‘s refusal to allow the defense attorney access to medical file was a violation of due process under the 5th Amendment.

The court determined that the Court‘s restrictions resulted in the jury seeing an incomplete and inaccurate picture of the confidential informant‘s credibility. From the perspective of the jury, the confidential informant had only “a little bit” of a drug problem. Moreover, the jury never heard of the repeated violations of the confidential informant‘s agreement with the ATF by using drugs.

By the prosecutor‘s version of events, the confidential informant had reformed since becoming an ATF informant. had largely reformed himself after becoming an ATF informant. Finally, the confidential informant had singifnicant memory issues related to the events which he attributed to a lapse of time. The jury was unable to judge his credibility independently based upon the mental health and drug issues.

The Due Process Clause of the Fifth Amendment provides that “[n]o person
shall . . . be deprived of life, liberty, or property, without due process of law. The 5th Amendment‘s primary protection is that of a fundamentally fair trial. This requires that all material evidence be admitted.

This does not necessarily mean that the withheld records would have resulted in acquittal. The Court stated instead, that “the touchstone is simply whether the ultimate verdict is one ‘worthy of confidence.”

Having addressed the due process issues under the 5th Amendment, the Court went on to address confrontation issues under the 6th Amendment.


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