I. MEMORANDUM ON USE OF INFORMANTS BY A CONGRESSIONAL COMMITTEE In the course of its investigation, the select committee considered various manners in which to acquire information. One such technique was the use of committee investigators in a "close surveillance" context. The committee carefully considered the legality, propriety, and utility of the proposal and did implement the "close surveillance" project. The memorandum in this section was studied by the committee in considering this project. Many of the legal issues that are addressed in this memorandum are also raised in the context of informant-utilization in a criminal investigation. Since the committee was of a limited duration, it was impossible to develop a long-term working relationship with informants. In addition, the committee could not have informants on its payroll. The committee did receive information and sworn affidavits from some witnesses who acted in an informant capacity. These witnesses were paid for the legitimate and documented expenses that they incurred, in accordance with the rules of the House. They were not, however, placed on salary, or paid for information as such. One such individual was a Mr. Oliver Patterson-a friend of Jerry Ray and some of his associates, such as J. B. Stoner, Mr. Patterson, without the knowledge of Jerry Ray and J. B. Stoner, supplied information on a continuing basis to the committee, some of which was taken under oath. At a point in time, Mr. Patterson publicly revealed his role, and began alleging that he was a paid informant; had communicated false information to the committee; and that committee investigators had committed illegal acts.1 The committee performed a thorough investigation of Mr. Patterson's allegation, including conducting an extensive interview of Mr. Patterson by representatives of the staff. The interview of Mr. Patterson was conducted by representatives of the staff that had been approved by Mr. Patterson. The committee found each of the allegations of impropriety made by Mr. Patterson were false. The committee did not rely in its findings on any of the information supplied by Mr. Patterson. 1 A copy of Mr. Patterson's allegations was inserted by Chairman Stokes in the Sept. 11, 1978, vol. 124, Congressional Record at H9467. (383) MEMORANDUM TO: Chairman Stokes and Members FROM: G. Robert Blakey DATE: RE: Constitutional Limitations on the Use of Informants The following memorandum is a detailed excerpt from G. Blakey and R. Goldstock, Techniques in the Investigation and Prosecution of Organized Crime, Manuals of Law and Procedure, §14 (Prepared for use in Summer Seminar Program of the Cornell Institute on Organized Crime, 1977). As the memorandum explains, the proposed use of a Committee investigator, in the context of a "close surveillance" project, is clearly legal under current constitutional doctrine. Summary In most The Fourth Amendment does not protect a speaker against disclosure of his incriminating statements made to, or in the presence of, an informant. The informant may consent to have his conversations transmitted and recorded. jurisdictions one-party consent eavesdropping is not considered a search and seizure and no warrant is required. The constitutionality of a "listening post informant" was recently challenged in a state court, but under the federal jurisprudence there is no Fourth Amendment violation. The Fifth Amendment privilege against self-incrimination is not violated by admission at trial of statements made to, or in the presence of an informant. Such statements are not made under any compulsion, an essential element of a Due Process does not prohibit the use of an informant to gather evidence. An informant's conduct may be sufficiently outrageous, however, to deprive a defendant of his procedural rights. First Amendment freedoms of speech and association may be threatened by covert surveillance of political groups. The government must have a legitimate purpose in its investigation, use legal surveillance techniques that do not cause specific harm to protected rights, and divulge the information obtained only to law enforcement agencies. The Sixth Amendment guarantee of effective assistance of counsel presents two problems for covert investigation. First, an informant may not surreptitiously interrogate Second, informant or electronic intrusions into the |