MISSISSIPPI LEGISLATURE
2017 Regular Session
To: Judiciary B
By: Representative Bomgar
AN ACT TO CREATE THE "MISSISSIPPI CONFIDENTIAL INFORMANT ACT"; TO PROVIDE DEFINITIONS FOR THIS ACT; TO REQUIRE VARIOUS FACTORS TO BE CONSIDERED WHEN AN INFORMANT OR INFORMATION PROVIDED BY AN INFORMANT WILL BE USED FOR ANY PURPOSE BY A LAW ENFORCEMENT AGENCY, DISTRICT ATTORNEY OR DURING ANY COURT PROCEEDING; TO CREATE THE LIST OF REQUIRED RELIABILITY FACTORS TO BE CONSIDERED WHEN USING AN INFORMANT OR INFORMATION PROVIDED BY AN INFORMANT; TO REQUIRE CERTAIN INFORMATION TO BE PROVIDED IN WRITTEN FORM, WITH A SIGNATURE LINE TO EACH INFORMANT; TO REQUIRE ANY DISTRICT ATTORNEY WHO INTENDS TO USE AN INFORMANT OR INFORMATION PROVIDED BY AN INFORMANT TO DISCLOSE SUCH INTENT TO THE COURT; TO REQUIRE THE DISTRICT ATTORNEY TO PROVIDE THE LIST OF FACTORS USED TO DETERMINE THE INFORMANT'S RELIABILITY TO THE COURT; TO PROHIBIT USE OF A PERSON WHO IS 15 YEARS OF AGE OR YOUNGER AS AN INFORMANT IN ANY MANNER; TO PROVIDE THAT ANY PERSON OVER THE AGE OF 15 AND UNDER THE AGE OF 18 SHALL NOT BE AN INFORMANT UNLESS A COURT ORDER AUTHORIZES THE MINOR'S COOPERATION; TO REQUIRE EACH LAW ENFORCEMENT AGENCY OR STATE AGENCY WITH A LAW ENFORCEMENT DEPARTMENT TO REPORT TO THE JOINT COMMITTEE ON PERFORMANCE EVALUATION AND EXPENDITURE REVIEW, NOT LATER THAN MARCH 1 OF EACH YEAR, ALL SERIOUS CRIMES, AUTHORIZED AND UNAUTHORIZED, COMMITTED BY INFORMANTS USED BY THE LAW ENFORCEMENT AGENCY; TO REQUIRE A HEARING BEFORE ANY COURT PROCEEDING IN WHICH AN INFORMANT WILL BE USED; TO REQUIRE A HEARING TO DETERMINE THE RELIABILITY OF THE INFORMANT BEFORE THE COURT PROCEEDING IN WHICH THE INFORMANT OR THE INFORMATION PROVIDED BY THE INFORMANT WILL BE USED; TO PROHIBIT USE OF ANY PERSON WHO IS RECEIVING IN-PATIENT OR OUT-PATIENT TREATMENT FOR SUBSTANCE ABUSE TO BE USED AS AN INFORMANT TO BUY OR SALE CONTROLLED SUBSTANCES OR CONTRABAND OF CONTROLLED SUBSTANCES; TO REQUIRE STATEMENTS OF INFORMANTS TO BE RECORDED ELECTRONICALLY; TO REQUIRE THE ATTORNEY GENERAL TO COLLECT AND PUBLICLY DISSEMINATE THE FOLLOWING ANNUAL AGGREGATE DATA FROM ALL STATE LAW ENFORCEMENT AGENCIES; THE ATTORNEY GENERAL SHALL COLLECT AND POST ON ITS WEBSITE, CERTAIN INFORMATION REGARDING USE OF INFORMANTS; TO PROVIDE THE LIST OF THE REQUIRED INFORMATION; TO REQUIRE LAW ENFORCEMENT OFFICIALS, INCLUDING DISTRICT ATTORNEYS, TO HAVE AN AFFIRMATIVE DUTY TO REPORT WHEN THERE IS REASON TO BELIEVE THAT AN INNOCENT PERSON HAS BEEN CONVICTED OF A CRIME; TO AMEND SECTION 99-39-5, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTIONS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Mississippi Confidential Informant Act."
SECTION 2. The following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise:
(a) "Benefit" means leniency in any criminal case, probation or parole matter, including but not limited to, a decision not to arrest or charge for an offense, or to limit the number or severity of charges; sentence reduction of any kind or amount, including the reduction or dismissal of a pending or potential juvenile petition against a minor; money; change of immigration status; witness protection; in-kind benefits such as food, rent, or travel; in-custody benefits such as visiting privileges, transfer to better living conditions, enhanced access to food, entertainment, and other amenities; and any of these conferred on a third party.
(b) "Criminal suspect" means any person under criminal investigation for a crime, any person for whom there is probable cause to believe that such person has committed a crime; or an arrestee, a detainee, a defendant, an inmate, a probationer, a parolee, or other individual subject to potential criminal charges or punishment. It does not include victims of the crime being investigated or prosecuted, or experts.
(c) "Informant" means any criminal suspect, whether or not detained or incarcerated, who provides information in exchange for a benefit, the promise of a benefit, or an expectation thereof.
(d) "Serious crime" means:
(i) Any crime of violence as defined in Section 97-3-2;
(ii) Any felony drug offense as that term is defined in the Uniform Controlled Substance Law; or
(iii) An offense consisting of racketeering, bribery, obstruction of justice, or perjury.
SECTION 3. (1) Whenever an informant or information provided by an informant will be used for any purpose by a law enforcement agency, district attorney or during any court proceeding, the following factors, shall be used to determine the informant's reliability:
(a) Any statements made by the informant that relate to the offense, including inconsistent statements, modifications, and recantations.
(b) The informant's criminal history, including any history of violence.
(c) All criminal cases in which the informant provided information, cooperation, or testimony and whether any past information has been found false.
(d) The informant's age and maturity.
(e) All benefits the informant received or was promised in connection with his or her cooperation or testimony in any criminal case.
(f) Any relationships between the informant and the accused, including personal relationships, gang memberships, or connections in other criminal cases.
(g) The extent to which the informant had or could obtain access to information related to the defendant's case, and the nature of that access.
(h) Whether the person is a current substance abuser or has a history of substance abuse.
(i) Whether the person is mentally ill or has a mental disability, or has a history of mental illness or mental disability.
(j) The risk of harm that could be caused to the person, his or her immediate family, or close associates as a result of providing information or assistance, or upon the disclosure of the person's assistance to the community.
(k) Any other evidence relevant to the informant's reliability or credibility.
(2) Evidence obtained from an informant shall be inadmissible unless it is independently corroborated by strong evidence connecting the defendant to the commission of the crime. Corroboration is not sufficient if it only shows the commission of the offense or if it is provided by another informant.
SECTION 4. (1) Whenever a district attorney uses an informant to provide information, statements or evidence that will be used in any manner during a court proceeding, the district attorney shall disclose its intent to use the informant or information provided by an informant, and shall provide a list of the reliability factors required by this act that were used by the district attorney to determine the informant's reliability. The information required by this section shall be provided by the district attorney to the court in a timely manner as required by the Mississippi Rules of Civil Procedure, and in every case, before any court proceeding in which the informant or any information provided by the informant will be used.
(2) Failure of a district attorney to provide the information required by this section in the time required by this section, shall prohibit the district attorney from using the informant or any information provided by the informant as evidence in any court proceeding in which the district attorney failed to provide the required information in the manner required by this section.
SECTION 5. Whenever any person agrees to be an informant, the following information shall be provided in a written document with a signature line for purposes of having the informant sign the document as proof of receipt of the information:
(a) A warning that only a prosecutor, and not a police officer or investigator, can promise benefits such as a grant of immunity, dropped or reduced charges, or reduced sentences or placement on probation in exchange for serving as an informant.
(b) A written contract enumerating all the activities required of the informant, the promised benefits, and the time period for which the informant is obligated to cooperate.
(c) An opportunity to consult with legal counsel before the person agrees to perform any activities as an informant. If the person cannot afford counsel, the public defender's office or other appointed counsel must be provided.
SECTION 6. (1) (a) In any court proceeding in which an informant will be used, the court shall hold a hearing to determine the reliability of the informant before the court proceeding in which the informant or the information provided by the informant will be used. During the hearing, the court shall evaluate (i) whether strong evidence of corroboration exists as required by this act, and (ii) whether the informant is reliable using the factors provided in Section 3 of this act. If the court fails to find both corroboration and reliability using a preponderance of the evidence standard, all information, statements or other evidence obtained from the informant shall be excluded.
(b) At a reliability hearing and at trial, the defendant shall have the opportunity to call an expert witness to testify regarding any of the following subjects, including but not limited to: the general unreliability of informants, the prevalence of informant-generated wrongful convictions, techniques that informants are known to use to generate credible yet false evidence, academic research on the subject, available information regarding practices in that jail and/or jurisdiction, and any other information that might be helpful to the fact finder.
(2) If after conviction, a defendant produces evidence that an informant provided false information that might have affected the outcome of the plea or trial, the court shall hold a reliability hearing as required in paragraph (a) of this subsection. A recantation by the informant shall presumptively provide sufficient evidence to require a hearing. If the court concludes by a preponderance of the evidence that the informant provided false evidence, the court shall vacate the conviction and order a new trial. The provisions of this section shall not be construed to limit, restrict or change any provision of law regarding post conviction.
SECTION 7. (1) (a) The following statements by an informant shall be electronically recorded:
(i) All statements made by an informant relating to serious crimes as defined in this act; and
(ii) All statements made by law enforcement or representatives of the state to an informant in eliciting or receiving those informant statements or in establishing the terms of the informant's cooperation or benefits.
(b) If an audio and visual recording is not practicable, an audio recording is an acceptable alternative to audio and visual recording.
(2) Each electronic recording shall be preserved and catalogued in a manner in which the informants can be clearly identified until all appeals, post-conviction or habeas corpus proceedings connected to the informant are final and concluded, or the time within which such proceedings must be brought has expired.
(3) Upon motion by the defendant, the court may order that a copy of the recording be preserved for any period beyond the expiration of all appeals.
(4) Any informant statements not recorded in accordance with this section are per se inadmissible.
(5) Failure to record as required by this section, shall prohibit an informant from being used as a witness in any court proceeding in which the recording required by this section would have been necessary.
SECTION 8. (1) Not later than March 1 of each year, each law enforcement agency shall, with respect to each department within the law enforcement agency, provide a report to the Joint Committee on Performance Evaluation and Expenditure Review of all serious crimes, authorized and unauthorized, committed by informants maintained by the law enforcement agency; and all benefits conferred by the law enforcement agency on such informants.
(2) (a) Each report shall include: (i) a description of the total number of each type and category of crime; (ii) the amount of drugs involved if the crime is a drug crime; (iii) the amount of money involved if the crime is a theft or bribery crime; (iv) whether the crime was authorized or unauthorized; (v) the zip code in which each crime took place; and (vi) all amounts expended, including monies spent from assets seized through forfeiture.
(b) The report shall not contain: (i) individual informant names, (ii) informant control numbers, or (iii) other personal identification information that could reveal the identity of an individual informant.
(3) The duty to report crimes under this section exists regardless of whether the informant has or has not been arrested or charged with the reportable crime in any jurisdiction.
(4) No provision of this section shall be construed to limit the authority and responsibility of the appropriate committees of the Mississippi Legislature to obtain information necessary to carry out its respective functions and duties.
SECTION 9. (1) A person who is fifteen (15) years of age or younger shall not be used as an informant in any manner.
(2) (a) Except as otherwise provided in paragraph (b) of this subsection, no law enforcement official shall use a person over the age of fifteen (15) and under the age of eighteen (18) years as an informant, unless that official has obtained an order from the court authorizing the minor's cooperation.
(b) Before issuing any order pursuant to paragraph (a) of this subsection, and if all conditions in paragraph (c) of this subsection are met, the court shall determine on the record whether the agreement to act as an informant is voluntary and is being entered into knowingly and intelligently, after consideration of (i) the age and maturity of the minor, (ii) the gravity of the minor's alleged offense, (iii) the safety of the public, and (iv) the interests of justice.
(c) Before a court makes the determination described in paragraph (b) of this subsection, all of the following conditions shall be satisfied and evidenced in the record:
(i) The court has found probable cause that the minor committed the alleged offense. The finding of probable cause shall only be for the purpose of issuing the order pursuant to subsection (b), and shall not prejudice the minor in any future proceedings.
(ii) The court has advised the minor of the mandatory minimum and maximum sentence for the alleged offense.
(iii) The court shall determine on the record what benefits the minor may obtain by cooperating with law enforcement, the certainty of those benefits, and whether they are substantial in light of the minor's likely punishment for the offense in that jurisdiction.
(iv) The minor's parent or guardian has consented to the agreement by the minor unless the parent or guardian is a suspect in the criminal investigation.
(v) The minor has had the opportunity to consult with appointed counsel, or with private counsel if the minor's family has provided such counsel.
(3) No college or university police shall recruit or engage students enrolled on campus to become informants. In addition, no student shall be recruited to participate in a controlled buy or sale of contraband or other such activities, whether or not the student is offered or receives a benefit. Nothing in this section shall preclude a student from voluntarily providing confidential information to university police.
(4) (a) No law enforcement official or prosecutor shall authorize or permit an informant to engage in a controlled buy or sale of contraband, if that informant is receiving in-patient or out-patient treatment administered by a licensed service provider for substance abuse, or is in a treatment-based drug court program, or has experienced a drug overdose within the past year.
(b) No law enforcement official or prosecutor shall use an informant who has a mental health diagnosis which impairs their cognitive decision-making abilities.
(5) No law enforcement official or prosecutor shall intentionally select an informant based on the informant's race, religion, ethnicity, country of national origin, or immigration status.
SECTION 10. (1) Each law enforcement agency shall establish policies and procedures addressing the recruitment, control, and use of informants. The policies and procedures must address at least the following:
(a) General guidelines for handling informants, including policies and procedures for implementing and complying with sections;
(b) Designated supervisory or command-level review and oversight in the selection and use of an informant;
(c) Restrictions on off-duty association or social relationships by agency personnel with informants;
(d) Guidelines to deactivate informants, including guidelines for deactivating communications with informants; and
(e) A description of the level of enhanced supervisory approval required before a minor is used as an informant, consistent with this act.
(f) Policies and procedures that assign the highest priority in operational decisions and actions to the preservation of the safety of informants, law enforcement personnel, target offenders, and the public.
(g) Ensure that all personnel who are involved in the use or recruitment of informants are trained in the law enforcement agency's policies and procedures. The agency shall keep documentation demonstrating the date and content of such training.
(2) Law enforcement agencies shall establish record-keeping procedures that create a separate file for every informant that, at least;
(a) Records their name, age, gender, race, ethnicity, and residential zip code;
(b) Records applicable information regarding reliability factors described in this act, including any leniency-related benefits.
(c) Provides for the secure maintenance of records related to informants to protect their identities from public disclosure or other inappropriate access;
(d) Provides for the gathering and disclosure of information as required by this act;
(e) Defines the process by which records concerning informants may be lawfully destroyed; and
(f) Performs a periodic review of actual agency informant practices to ensure conformity with the agency's policies and procedures and this act.
SECTION 11. (1) The Attorney General shall collect and publicly disseminate the following annual aggregate data from all state law enforcement agencies:
(a) The number of informants created and used, by age, gender, race, ethnicity, and residential zip code.
(b) The number of warrants issued based on information from an informant, by zip code of the target search.
(c) The number of crimes prosecuted based on informant evidence, by name of crime and severity.
(d) The number of crimes committed by informants, by name of crime and severity.
(e) The total value of all nonleniency-related benefits conferred on informants.
(f) The number of informants injured or killed in connection with their service as informants, by race, gender, age, and zip code.
(2) The Attorney General is authorized, in addition to any other duties provided by law, to create an Informant Supervisory Committee to oversee the use of the following types of informants as witnesses:
(a) Informants who are in-custody at the time they provide information to the state; and
(b) Informants who are chargeable with a serious crime as defined by this act.
(3) Any prosecutor seeking to use such an informant as a trial witness must obtain the prior approval of the committee by submitting a written request.
(4) A request to use an informant shall contain at least the following:
(a) Analysis of the reliability factors provided by this act, including any benefits promised in connection with the instant case;
(b) Existence of strong corroboration as described in this act; and
(c) Names, ages, and current location of any victims of the informant's serious crimes.
(5) The Attorney General's office shall designate an independent unit to receive petitions regarding potential defense informants. A criminal suspect who has exculpatory information regarding another criminal suspect may petition the unit for a leniency recommendation in exchange for providing evidence or testimony on behalf of the other criminal suspect. An attorney may also petition on behalf of a criminal suspect who possesses exculpatory information regarding the attorney's client.
The unit shall consider the value of the exculpatory information and the reliability of the informant, and make a recommendation for leniency to be conveyed to the appropriate prosecutorial authority. The leniency awarded to an informant shall be comparable to the leniency that would be awarded to a government sponsored informant who provides comparable exculpatory evidence to the government.
SECTION 12. Law enforcement officials, including district attorneys, shall have an affirmative duty to report when they have reason to believe, based on information obtained from an informant, that an innocent person has been convicted of a crime. Reports shall include the name and location of the informant, and the nature and substance of the exculpatory evidence. Reports shall be provided within sixty (60) days directly to the defendant, the defense attorney who represented the defendant in that case, and the presiding judge for that case.
SECTION 13. Section 99-39-5, Mississippi Code of 1972, is amended as follows:
99-39-5. (1) Any person sentenced by a court of record of the State of Mississippi, including a person currently incarcerated, civilly committed, on parole or probation or subject to sex offender registration for the period of the registration or for the first five (5) years of the registration, whichever is the shorter period, may file a motion to vacate, set aside or correct the judgment or sentence, a motion to request forensic DNA testing of biological evidence, or a motion for an out-of-time appeal if the person claims:
(a) That the conviction or the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of Mississippi;
(b) That the trial court was without jurisdiction to impose sentence;
(c) That the statute under which the conviction and/or sentence was obtained is unconstitutional;
(d) That the sentence exceeds the maximum authorized by law;
(e) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;
(f) That there exists
biological evidence secured in relation to the investigation or prosecution
attendant to the petitioner's conviction not tested, or, if previously tested,
that can be subjected to additional DNA testing, that would provide a
reasonable likelihood of more probative results, and that testing would
demonstrate by reasonable probability that the petitioner would not have been
convicted or would have received a lesser sentence if favorable results had
been obtained through such forensic DNA testing at the time of the original
prosecution * * *;
(g) That his plea was made involuntarily;
(h) That his sentence has expired; his probation, parole or conditional release unlawfully revoked; or he is otherwise unlawfully held in custody;
(i) That he is
entitled to an out-of-time appeal; * * *
(j) That the
conviction or sentence is otherwise subject to collateral attack upon any
grounds of alleged error heretofore available under any common law, statutory
or other writ, motion, petition, proceeding or remedy * * *; or
(k) That the conviction or sentence was obtained by using an informant who was not reliable or otherwise credible as provided in this act.
(2) A motion for relief under this article shall be made within three (3) years after the time in which the petitioner's direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction. Excepted from this three-year statute of limitations are those cases in which the petitioner can demonstrate either:
(a) (i) That there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence; or
(ii) That, even if the petitioner pled guilty or nolo contendere, or confessed or admitted to a crime, there exists biological evidence not tested, or, if previously tested, that can be subjected to additional DNA testing that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.
(b) Likewise excepted are those cases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.
(3) This motion is not a substitute for, nor does it affect, any remedy incident to the proceeding in the trial court, or direct review of the conviction or sentence.
(4) Proceedings under this article shall be subject to the provisions of Section 99-19-42.
(5) For the purposes of this article:
(a) "Biological
evidence" means the contents of a sexual assault examination kit and any
item that contains blood, semen, hair, saliva, skin tissue, fingernail
scrapings, bone, bodily fluids or other identifiable biological material that
was collected as part of the criminal investigation or may reasonably be used
to incriminate or exculpate any person for the offense. This definition
applies whether that material is catalogued separately, such as on a slide,
swab or in a test tube, or is present on other evidence, including, but not
limited to, clothing, ligatures, bedding or other household material, drinking
cups, cigarettes or other items * * *.
(b) "DNA" means deoxyribonucleic acid.
SECTION 14. This act shall take effect and be in force from and after July 1, 2017.