Criminal Defense
Since 1993
Since 1993
Eyewitness Withheld, But You’re Still Going to Prison
So, this is America, right? You have the “right” to confront your accusers, that’s part of the due process clause contained within our great Constitution. However, can a US Citizen really go to prison even though a key witness is withheld? This isn’t communist China, is it? Well, in Florida’s quest to rack up more drug possession arrests, more trafficking charges, and more sale and delivery cases, can’t we just fudge a little on a defendant’s right to know what the witnesses will say about him?
Take this example: A drug deal–standard sale and delivery set up. Cops show up at trial and convict defendant, but the government withholds a key eyewitness, so that the jury never gets to hear the witness’ testimony. This witness was present during the drug deal–witnessed the whole thing–but the jury never learns of his perspective. Never hears the testimony. It’s buried. Legally.
Welcome to the wonderful world of confidential informants. Our government has carved out a little exception (primarily in drug cases), whereby they do not have to reveal a key witness to the defendant nor jury–and thus we are left to just trust the police officer’s testimony! Hum, we trust police testimony, don’t we? So, why bother bringing in other witnesses? …Because this is America, and we get to challenge our government’s accusations (sometimes..).
So, the rule in Florida, unfortunately, is best described by the court in State v. Miller, 729 So.2d 417, 419 (Fla. 4th DCA 1999): “Disclosure of a confidential informant is required if an informant’s identity or content of his communication is relevant and helpful to the defense of an accused or is essential to a fair determination of a cause.”
Unfortunately, our laws require that a defendant “give up” his theory of defense to the judge, in order to prove that the confidential informant is “needed” to defend the case. Crazy huh? Would you want to have prison on the line without ever knowing what an eyewitness “really” saw? But hey, you trust police testimony, right?