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Privileged Information vs. Defendant Rights in Criminal Cases

Posted on in Drug Crimes

Privileged Information vs. Defendant Rights in Criminal CasesAn Illinois appellate court recently granted a defendant a retrial in his criminal case because the circuit court improperly allowed a testifying police officer to withhold important information regarding the case. The defendant had been convicted for possession of a controlled substance with intent to deliver. Law enforcement will try to protect information during a trial that it deems sensitive and likely to put people in danger. However, a defendant also has the right to know the full details of the case against him or her in order to present an effective defense. Courts are supposed to weigh the two interests, with disclosure becoming more important when the prosecution’s case relies on the information.

Surveillance Privilege

The recent drug possession case involved a police officer watching the defendant in order to catch him in the act of selling heroin. After allegedly witnessing the defendant conduct multiple transactions, the officer approached him. He was apprehended at the scene, and the substance in the bags he was allegedly selling tested positive for heroin. During the trial, the police officer refused to disclose the location where he surveilled the defendant because officers may still be using the site. The officer did confirm that:

  • He was 40 yards away from the defendant;
  • He was at street level;
  • He was in a vacant lot with vegetation; and 
  • He could not hear any of the defendant’s conversations.

The defense argued that it needed to know the surveillance spot in order to determine the sight line the officer had and whether there may have been visual disruptions. After consideration, the court ruled that the officer did not need to give his exact surveillance location if he could answer questions regarding his viewing conditions.

Appeal Decision

After the defendant’s conviction, the defense counsel motioned for a new trial because the withheld information prevented the defendant from having a fair trial. The trial court denied the motion, leading to the appeal. In siding with the defendant, the appellate court stated that the trial court erred in its decision because:

  • The prosecution invoked the privilege, which meant that the defense only needed to prove that the surveillance location was relevant in order to obtain the information;
  • The exact location would have allowed the defense to test the officer’s claims about how he viewed the incident;
  • The officer was the prosecution’s only live witness, making his testimony paramount to the case; and
  • There were no safety concerns for property owners because the location is a vacant lot.

Receiving a Fair Trial

A defense counsel needs verifiable evidence to go along with witness testimony in order to understand a criminal case. A McHenry County criminal defense attorney at Botto Gilbert Lancaster, P.C., will contest the prosecution’s attempts to withhold vital information that may help you win your case. To schedule a free consultation, call 815-338-3838.



Illinois State Bar Association State Bar of Wisconsin Crystal Lake Chamber of Commerce Illinois Trial Lawyers Association McHenry County Bar Association
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