Admissibility of informant tips --

I wanted to share some recent research on the admissibility of the content of informant tips, purportedly offered by the government for the non-hearsay purpose of explaining why the law enforcement officers did what they did. It's been a recurring problem in our district.

What I found is that most circuits do not allow such evidence in accordance with McCormick on Evidence section 249, unless the tipster testifies. Some courts say that the non-hearsay purpose is pretextual. Others say that it is inadmissible even if considered as non-hearsay because it is irrelevant under Fed. R. Evid. 401 and its probative value is substantially outweighed by the risk of unfair prejudice under Fed. R. Evid. 403. The more directly the informant implicates the defendant, the more likely the jury is to disregard limiting instructions and use the evidence as proof of guilt.

The Fifth Circuit previously took this position but seems to be retreating. If you are interested in the full memo with citations, email me and I'll send it to you.