Committee Comments

The necessity for a cautionary instruction concerning the credibility of informants is delineated in three Oklahoma appellate decisions. The Court of Criminal Appeals held in Smith v. State, 1971 OK CR 223, 485 P.2d 771, that a specific cautionary instruction with respect to the weight to be afforded the wholly unsubstantiated and uncorroborated testimony of an informer was required. In Smith, the defendant's conviction for sale of marijuana was reversed, in part due to the failure of the trial court to instruct the jury to be cautious in assessing the credibility of an informer whose testimony was uncorroborated, and the sole evidence placing the defendant at the scene of the crime. This denial was held tantamount to the abrogation of fair-trial rights, although the defendant did not request a cautionary instruction at trial. The court buttressed its holding by reliance on language found in Lee v. United States, 343 U.S. 747, 757 (1952):

485 P.2d, at 773.

In contrast, in Gee v. State, 1975 OK CR 133, 538 P.2d 1102, the court held the failure of the trial judge to give a cautionary instruction on informers' testimony was not error. and affirmed the defendant's conviction for sale of heroin.

According to the court, the defendant's reliance on Smith was misplaced because, in Smith, the informer had been promised a substantial benefit for rendering effective work as an informant, and because the defendant's presence at the scene of the crime was established solely by the testimony of the informant. Furthermore, the court in Smith had specifically prefaced its conclusion that a cautionary instruction was required with the phrase, "under these facts." Thus, reasoned the court, from Smith there emerges no "fundamental requirement that a trial court give cautionary instructions when an informant is used...." 1975 OK CR 133, ¶ 11, 538 P.2d at 1106.

In Gee, the informant's husband had narcotics charges pending against him, and she testified that she voluntarily did the informant work for the police because she hoped her husband would receive a lighter sentence as a result of her work for the police. However, she testified she was not paid for the work and received no promises with regard to consideration for her husband. Despite the possible motive for fabrication by the informer, the court distinguished Gee from Smith on the basis that no promises were made to the informer in Gee, as were made in Smith.

A second, more important, distinction was that the informant's testimony in Gee was corroborated by the testimony of a police officer, who testified that he saw the defendant with the informant at the crime scene when the sale allegedly took place.

Finally, the court in Gee noted that the defendant had not requested that a cautionary instruction on the informant's testimony be given and that the judge had instructed the jury properly by giving the general credibility instruction.

The court concluded its discussion of this issue with the statement that "[i]n view of the fact that the attorney did not object to any instructions given nor submit any requested instructions," no error occurred. 1975 OK CR 133, ¶ 14, 538 P.2d at 1106. The questions left unanswered in Gee are whether it would have been error to refuse to give a requested instruction on the credibility of the informant's testimony, and, if so, whether such error would have been prejudicial. In spite of the court's concluding remark about no objection to the instructions given or submission of requested instructions, in light of the court's prior discussion of the informant being promised nothing and the informant's testimony being corroborated, it is clear that failure to give a requested instruction in this case would not have been prejudicial, if indeed it would have constituted error at all.

In Roquemore v. State, 1973 OK CR 366, 513 P.2d 1318, the defendant's conviction for the sale of marijuana was reversed. The bases of the reversal were the introduction of highly prejudicial evidence in the form of letters written by the defendant making reference to LSD and improper closing argument by the prosecutor with respect to punishment and the role of the Pardon and Parole Board. Thus, the court's discussion of the cautionary instruction for the informant's testimony was dicta.

The chief witness against the defendant was an informant who conceded on the stand that he had also sold marijuana and had been promised immunity from prosecution for cooperating with the police. The court determined that, although the informant's testimony was corroborated, a cautionary instruction as to the informant's testimony was nevertheless required, due to the existence of some discrepancies with respect to items turned over to the officers on the night in question, as well as uncertainty with respect to the degree of visibility enjoyed by the observing officers. The court also stressed the fact that the informant stood to gain by his testimony, and declared that "better judgment would dictate that a cautionary instruction be given, when the informer stands to gain by his testimony." 1973 OK CR 366, ¶ 11, 513 P.2d at 1320.

Thus, the Commission has concluded that the cautionary instruction, as framed, is appropriate in any case where an informant's evidence is tinged by the prospect of reciprocal benefits in exchange for his/her testimony, whether the testimony is corroborated or not. Where the informant has been the recipient of no promises or advantages, the instruction is required, under the mandate of Gee, only if the informant's evidence is deemed by the court to be wholly unsubstantiated or uncorroborated.