Defending Against Controlled Buy Cases Involving Confidential Informants in Wisconsin

Challenging Confidential Informants: Key Defense Strategies

1. Demanding Critical Discovery

Under Wisconsin discovery law (Wis. Stat. § 971.23) and the constitutional principles set forth in Brady v. Maryland, we demand access to crucial information, including:

• The CI’s criminal history and pending charges.
• Payments, benefits, or promises made to the informant.
• Recordings or surveillance footage of the controlled buys.
• Cooperation agreements between the informant and law enforcement.

Obtaining this discovery can reveal critical biases or motives to fabricate testimony.

2. Attacking the Credibility of the CI

Confidential informants often have serious credibility issues, particularly if they have been promised leniency, money, or other incentives. In State v. Norfleet, Wisconsin courts recognized the importance of disclosing informant details when material to the defense. Our defense attorneys are skilled in:

• Impeaching the CI with inconsistencies.
• Highlighting prior dishonest conduct.
• Demonstrating bias, financial motives, or pressure to “make cases.”

3. Filing Motions to Disclose the Informant’s Identity

Not every CI can remain anonymous. Under Roviaro v. United States and State v. Outlaw, courts must balance the public interest in protecting informants against the defendant’s right to a fair trial. When the CI is a material witness — meaning they participated in or directly observed the alleged offense — we will file a motion to compel disclosure.

4. Evaluating Probable Cause and Challenging Search Warrants

Search warrants often rely heavily on confidential informant tips. We carefully scrutinize:

• The affidavits supporting any search warrant.
• Whether the CI’s information was corroborated.
• Possible false statements under Franks v. Delaware standards.

If the probable cause foundation is shaky, we will pursue suppression of illegally obtained evidence.

5. Moving to Suppress Evidence Tied to CI Activity

Law enforcement cannot use confidential informants to skirt constitutional protections. If the CI acted beyond permissible limits (e.g., unlawful searches, entrapment, or warrantless surveillance), we pursue:

• Motions to suppress evidence.
• Challenges based on Fourth Amendment violations and Article I, § 11 of the Wisconsin Constitution.

For more on suppression issues, visit our page on Motions to Suppress Evidence in Wisconsin.

6. Strategic Cross-Examination of the CI

Cross-examining a CI requires precision. Our attorneys prepare extensively to:

• Expose motivations to lie.
• Limit rehabilitative opportunities by prosecutors.
• Keep the focus on the unreliability of incentivized testimony.

7. Requesting Special Jury Instructions on Informant Testimony

If a confidential informant testifies, Wisconsin courts may provide cautionary instructions warning jurors to view the testimony with greater scrutiny. Tailoring these jury instructions can be crucial in highlighting the risks of convicting based on unreliable witnesses.