Our office is trying to determine whether or not a prosecutor be a party to a contract (i.e., sign CI's contracts) for a CI that has not been indicted yet. We are wondering how that affects immunity. Do we still have any immunity (i.e., qualified immunity) if anything happens to the CI during the contract phase?

First, qualified immunity typically will cover most discretionary, "official duty" situations not encompassed by absolute prosecutorial immunity. If the arrangement is reasonably necessary to procure evidence, there's a good chance that qualified immunity may be available should something go wrong. Since contracting with CIs isn't traditionally associated with a prosecutor's advocacy function in court, though, I think prosecutorial immunity will be an iffy proposition. On the other hand, if it's an immunity agreement with the CI you're talking about, it may be a closer call. Still, making agreements and gathering evidence are functions the courts tend to categorize as outside the advocacy function.

Second, neither the Fifth Circuit nor the U.S. Supreme Court have officially signed off on the "state-created danger" theory of liability under section 1983.

Whether the particular contract is advisable would be difficult to evaluate without knowing its provisions.

Thanks for shedding some light on a scary scenerio of a CI getting killed while working and the lawsuits that might be filed later. Think I'll leave the CI agreements to the officers.

Just wanted to check how other jurisdictions are handling CI contracts. Are the prosecutors getting involved with any of the contracts prior to indictment? My understanding is that the better idea is for prosecutors to only become involved once the defendant has been indicted and has an attorney to negotiate the CI contract as part of the plea, is that right?

I am never a party to a CI contract. However, i get a written (usually) update on work/cases the CI has done. We do not follow the "if you do X# of felony cases then your case will be reduced to (fill in the blank)" type of contracts. CI's are to do the most they can and then i'll evaluate their work and rec my case accordingly.