Criminal Law

Suitability Determination

  1. Initial Suitability Determination

    Prior to utilizing a person as a CI, a case agent of a JLEA shall complete and sign a written Initial Suitability Report and Recommendation, which shall be forwarded to a Field Manager for his or her written approval. In completing the Initial Suitability Report and Recommendation, the case agent must address the following factors (or indicate that a particular factor is not applicable):

    1. the person's age;
    2. the person's alien status;
    3. whether the person is a public official, law enforcement officer, union official, employee of a financial institution or school, member of the military services, a representative or affiliate of the media, or a party to, or in a position to be a party to, privileged communications (e.g., a member of the clergy, a physician, or a lawyer);
    4. the extent to which the person would make use of his or her affiliations with legitimate organizations in order to provide information or assistance to the JLEA, and the ability of the JLEA to ensure that the person's information or assistance is limited to criminal matters;
    5. the extent to which the person's information or assistance would be relevant to a present or potential investigation or prosecution and the importance of such investigation or prosecution;
    6. the nature of any relationship between the CI and the subject or target of an existing or potential investigation or prosecution, including but not limited to a current or former spousal relationship or other family tie, and any current or former employment or financial relationship;
    7. the person's motivation in providing information or assistance, including any consideration sought from the government for this assistance;
    8. the risk that the person might adversely affect a present or potential
    9. investigation or prosecution;

    10. the extent to which the person's information or assistance can be corroborated;
    11. the person's reliability and truthfulness;
    12. the person's prior record as a witness in any proceeding;
    13. whether the person has a criminal history, is reasonably believed to be the subject or target of a pending criminal investigation, is under arrest, or has been charged in a pending prosecution;
    14. whether the person is reasonably believed to pose a danger to the public or other criminal threat, or is reasonably believed to pose a risk of flight;
    15. whether the person is a substance abuser or has a history of substance abuse;
    16. whether the person is a relative of an employee of any law enforcement agency;
    17. the risk of physical harm that may occur to the person or his or her immediate family or close associates as a result of providing information or assistance to the JLEA; and
    18. the record of the JLEA and the record of any other law enforcement agency (if available to the JLEA) regarding the person's prior or current service as a CI, Cooperating Defendant/Witness, or Source of Information, including, but not limited to, any information regarding whether the person was at any time terminated for cause.
  2. Continuing Suitability Review

    1. Each CI's file shall be reviewed by the case agent at least annually. The case agent shall complete and sign a written Continuing Suitability Report and Recommendation, which shall be forwarded to a Field Manager for his or her written approval. In completing the Continuing Suitability Report and Recommendation, the case agent must address the factors set forth above in paragraph (II)(A)(1) (or indicate that a particular factor is not applicable) and, in addition, the length of time that the individual has been registered as a CI and the length of time that the individual has been handled by the same agent or agents.
    2. Each JLEA shall establish systems to ensure that all available information that might materially alter a prior suitability determination, including, but not limited to, information pertaining to unauthorized illegal activity by the CI, is promptly reported to a Field Manager and then recorded and maintained in the CI's file. See (IV)(B)(2) below. Upon receipt of any such information, the Field Manager shall ensure that a new Continuing Suitability Report and Recommendation is promptly prepared in light of such new information.
  3. Review of Long-Term Confidential Informants4

    1. When a CI has been registered for more than six consecutive years, and, to the extent such a CI remains open, every six years thereafter, the CIRC shall review the CI's completed Initial and Continuing Suitability Reports and Recommendations and decide whether, and under what conditions, the individual should continue to be utilized as a CI. A Criminal Division representative on the CIRC who disagrees with the decision to approve the continued use of such an individual as a Confidential Informant may seek review of that decision pursuant to paragraph (I)(G).
    2. Every three years after a CI's file is reviewed pursuant to the provisions of paragraph (II)(A)(3)(a), if the CI remains registered, the JLEA shall conduct an internal review, including review by a designated senior headquarters official, of the CI's completed Initial and Continuing Suitability Reports and Recommendations. If the designated senior headquarters official decides that there are any apparent or potential problems that may warrant any change in the use of the CI, the official shall (i) consult the appropriate Senior Field Manager and (ii) provide the Initial and Continuing Suitability Reports and Recommendations to the CIRC for review in accord with paragraph (II)(A)(3)(a).

4 This provision did not apply until one year after these Guidelines' original effective date of January 8, 2001, when the first set of Continuing Suitability Reports and Recommendations was completed. Further, during the first three years that this provision is in effect, each CIRC may stagger the review of some long-term CIs in order to even out the number of files that must initially be reviewed. However, no later than four years after the original effective date of these Guidelines, all of the CIs who were registered for more than six consecutive years as of the original effective date of these Guidelines must be reviewed pursuant to this provision.