§ 42.02 Informant's Privilege

• Jurisdiction: United States

§ 42.02 Informant's Privilege

All jurisdictions recognize a qualified privilege that permits the prosecution to withhold the identity of an informant.

Rationale. This common law privilege is intended to protect "the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation."³ One commentary explained the purpose of the informant's privilege as follows:

It is founded on the rationale that information provided by informants is critical to law enforcement efforts—especially in the area of "victimless" crimes such as drug trafficking, prostitution, and illegal trading in weapons—and that the promise of confidentiality is necessary to maintain this flow of information. Informants are frequently targets of economic or physical retaliation that may, in the extreme, include murder. In addition, many informants have ongoing relationships with government officials, and disclosure of their identities would render them useless in future law enforcement efforts. Finally, unlike beneficiaries of other privileges whose communications are often made without the expectation of litigation, informants are fully aware that the government uses their information in order to prosecute criminals who will almost certainly attempt to learn their identities during trial.⁴

[A] Holder

The holder of the privilege is the government, not the informant.⁵ Thus, the government may waive the privilege over the informant's objection.

[B] Scope of Privilege

The privilege covers only the identity of the informant and not necessarily the content of the communication.⁶ If "revealing the informant's communication will not reveal the informant's identity, that communication is not privileged."⁷ The privilege applies in civil as well as in criminal cases.⁸

[C] Exceptions

There are two exceptions to the privilege. First, once the identity of the informant becomes known, the privilege ceases.⁹

Second, if the identity of the informant would provide substantial assistance to the defense at trial, the state is required to reveal the identity of the informant or dismiss the prosecution. In Roviaro v. United States,¹⁰ the accused was charged with the sale and transportation of narcotics. According to the prosecution's evidence, the informer had been an active participant in the crime. He "had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly transported the drugs as charged."¹¹ Nevertheless, the trial judge denied a defense motion to compel the prosecution to disclose the informant's identity. The Supreme Court held that where disclosure "is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations, the trial court may require disclosure and, if the Government withholds the information, dismiss the action."¹²

The Court went on to state: "We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors."¹³

The Court then reviewed the circumstances of Roviaro's trial, pointing out that the informant's possible testimony was highly relevant—i.e., it might have disclosed an entrapment defense, thrown doubt upon the perpetrator's identity, the identity of the package, and possible lack of knowledge. Moreover, the informant was the sole participant, other than the accused, in the transaction charged. The Court concluded that, "under these circumstances, the trial court committed prejudicial error in permitting the Government to withhold the identity of its undercover employee in the face of repeated demands by the accused for his disclosure."¹⁴

According to the Fifth Circuit, whether disclosure of the informant's identity or communication is required depends on "1) the informant's degree of involvement in the crime, 2) the helpfulness of the disclosure to the defense, and 3) the Government's interest in nondisclosure."¹⁵ The key factors are whether the informant was a participant¹⁶ or the sole witness to the crime.¹⁷ But, by themselves, these factors may not be sufficient to require disclosure; the informant's testimony must also be material to the defense—e.g., entrapment.¹⁸ In contrast, a "mere tipster" without personal knowledge of the crime usually cannot provide crucial defense evidence.¹⁹

[D] In Camera Proceedings

The trial court may use in camera proceedings to determine the privilege's application.²⁰ The Ninth Circuit has observed:

From the defendant's standpoint, an in camera hearing may provide many of the same benefits as disclosure itself, particularly where defendant's counsel is allowed to participate under an order not to

...