Friday, June 25, 2010

Crime Stoppers Privilege

The Crime Stoppers Privilege: “Evidence of a communication between a person submitting a tip to a crime stoppers organization is not admissible in a court proceeding except as provided by statute.” Proctor v. Texas,  (1st Dist. - Houston).

The aim of the “crime stoppers privilege” is to encourage someone to provide a lead that will help identify those responsible for crimes. Texas has actually codified the crime stoppers privilege in Tex. Gov’t Code Ann. 414.008(a).

The privilege was challenged by the appellant in Proctor v. Texas. Proctor wanted an in camera review (and potential disclosure) of the identity of the person who had provided the tip that lead to his conviction. Proctor believed that the person who had provided the tip might have been involved in the actual homicide or was somebody that was just being vengeful about Proctor because of some issues between them.

The Texas statute containing the crime stoppers privilege provides that a trial court may subpoena the records of a crime stoppers organization concerning a report of criminal activity on the motion of a defendant who alleges that the records or report contain. Tex. Gov’t Code Ann. 414.008 (b)-(c). The trial court doesn’t, however, have to subpoena the records merely at the request of the defendant. Tex. Gov’t Code Ann. 311.016(1). In order to request the trial court’s subpoena, the defendant must make a plausible showing to the trial court, through sworn evidence or agreed facts, that the crime stoppers records in the possession of the State would be material exculpatory evidence that would create a probability of a different outcome. Wyatt v. State, 23 S.W.3d at 27; Ex parte Mitchell, 977 S.W.2d at 578. Proctor made no showing to the trial court to this effect. The court of appeals held that the trial court was not required in Proctor’s case to subpoena the crime stopper’s records.

So, what did we learn? Well, from the defense side, the Proctor case shows that there may be circumstances that allow the defense to find out the identity of the person providing a tip to crime stoppers. But, remember the defendant must make a plausible showing to the trial court through sworn evidence or agreed facts. Even then, the “may” language of Tex. Gov’t Code Ann. 311.016(1) suggests that the decision to disclose (or even to review in camera) will lie solely within the discretion of the court. For the defense, it’s an uphill battle.

From the State’s side, the Proctor case shows us that just because the defense wants it and asks for it doesn’t mean they’ll get it. The defense will still have hoops to jump through. I think it’s safe to say that given the aim of the crime stoppers privilege a court may not be too quick to throw that information at the defense.