Defendants under the supervision of the probation and pretrial services office
under an order of this court may not be used as confidential informants, or in a
manner that would violate any release condition, including any "association"
restrictions, without first obtaining an order modifying the release conditions to
allow for the proposed governmental assistance.
(a) Request for Use as Confidential Informant.
Effective December 1, 2025 Nebraska Criminal Rules
The procedure for obtaining an order to permit a defendant's participation
as a confidential informant and any necessary modifications of conditions
of pretrial release follows.
(1) Requesting Agency's Initial Duty.
Before asking the court to approve defendant's use as a confidential
informant and any necessary modifications of the defendant's pretrial
release conditions, a representative of the law enforcement agency
requesting the defendant's assistance must:
(A) conduct an in-depth discussion with the defendant and the
defense attorney concerning:
(i) the anticipated relationship between the defendant and
the federal law enforcement agency;
(ii) the intended targets of the federal agency's
investigation;
(iii) the anticipated manner and operation of the
defendant's assistance in the investigation; and
(B) if time permits, meet with a probation and pretrial services
officer to determine which conditions of pretrial release must
be modified if the defendant is to perform duties as a
confidential informant for the agency.
(2) Presentation and Content.
The agency's request must be presented through the government
and submitted ex parte to the magistrate or district judge assigned to
the case. In case of emergency, any magistrate or district judge in
this district may consider the request for modification. The request
must contain:
(A) an explanation of how the law enforcement agency intends to
use the defendant under pretrial supervision;
(B) the instructions the agency will provide to that defendant for
carrying out the proposed assistance;
(C) the agency's proposed administrative controls over the
defendant and the circumstances the defendant may
Effective December 1, 2025 Nebraska Criminal Rules
encounter in assisting with the government's investigation;
(D) an evaluation of the risk posed to the defendant and the
community by using the defendant as a confidential informant,
the government's plan to ameliorate that risk, and an
explanation of why the potential benefit to the government
outweighs the risk created by the defendant's re-involvement
with criminal associates;
(E) the identity of any targets of the investigation already under
this court's supervision;
(F) the specific time period of the proposed investigation; and
(G) the names of the law enforcement personnel who will oversee
the defendant's work and conduct.
(b) Judicial Review.
(1) Consult with Probation and Pretrial Services.
The judge considering the request must consult with probation and
pretrial services before granting the request unless:
(A) due to time constraints, the judge cannot reasonably obtain
an assessment from probation and pretrial services; or
(B) the court, in its discretion and at the request of the federal law
enforcement agency seeking the defendant's assistance,
decides that (i) the case is extremely sensitive and (ii)
overriding circumstances justify placing the defendant under
the law enforcement agency's supervision and ceasing
probation and pretrial services supervision.
(2) In Camera Review; Sealed Order.
The review of the agency's request must be conducted in camera,
and the order granting or denying the request must be filed under
seal.
(c) Term of Assistance.
(1) Timing.
Effective December 1, 2025 Nebraska Criminal Rules
If the court grants the agency's request, the defendant's services as
a confidential informant may begin when a court order grants the
request and may continue as specified in the court's order for a term
of up to 90 days. Probation and pretrial services must advise the
court 14 days before the end of that term that the defendant's term
as a confidential informant is ending. Absent emergency
circumstances, an extension of the term must (1) be requested in
writing 7 days before the term ends and (2) include an explanation
of why more time is needed.
(2) Emergency.
If an emergency exists requiring use of the confidential informant in
order to protect life or prevent substantial property loss, to apprehend
or identify a fleeing defendant, or to prevent the imminent loss of
evidence before court approval can reasonably be obtained, the
law enforcement agency (A) may, upon notice to the supervising
officer or the officer's supervisor, use the defendant as a confidential
informant for no more than 4 hours and (B) must notify the court as
soon as possible.
(3) Termination of Service; Notice.
When the defendant's services as a confidential informant are
complete, the agency must provide written notice to the court,
probation and pretrial services, and the defendant that the
defendant's services as a confidential informant are terminated. The
defendant must provide a written receipt for the notice.
(d) Supervision of Defendant.
When the court approves a defendant's use as a confidential informant, the
law enforcement agency obtaining the defendant's services must:
(1) with the assistance of probation and pretrial services, advise the
defendant (A) to abide by all pretrial release conditions set by the
court, including modified conditions, and (B) that the defendant may
not participate in any criminal activity without prior court approval;
(2) take all necessary and reasonable precautions to ensure the safety
of the defendant and the community;
(3) during the term of the defendant's service as a confidential informant,
advise the court directly or through probation and pretrial services of
any violations of the defendant's pretrial release conditions, including
Effective December 1, 2025 Nebraska Criminal Rules
any criminal activity; and
(4) inform the probation and pretrial services office when the law
enforcement agency believes any person is or may be in danger due
to the defendant's activities.
(e) Report at Sentencing.
The law enforcement agency that requested the defendant's services as a
confidential informant must, directly or through the government's attorney,
provide a report to the sentencing judge that (1) outlines the extent of the
defendant's cooperation and effectiveness in the investigation and (2)
states whether the defendant received financial remuneration or other
consideration or reward. All reports must remain sealed until it is appropriate
to make the defendant's cooperation known.
(f) Records.
All records identifying the defendant as a confidential informant are
confidential and may only be viewed by the court and probation and pretrial
services officers.
