Chapter 4 - §8. Informant privilege

• Jurisdiction: United States

§8. Informant privilege

§8.1. Overview. A public entity has a privilege to refuse to disclose and to prevent others from disclosing an informant's identity. Evid. C. §1041(a). The purpose of the privilege is to encourage citizens to supply the government with information about crimes and to protect the public interest in effective law enforcement. People v. Hobbs (1994) 7 Cal.4th 948, 958; People v. McShann (1958) 50 Cal.2d 802, 806; see In re Walsh (9th Cir.2021) 15 F.4th 1005, 1009 (describing purpose of federal government's informant privilege); People v. Lara (2d Dist.1967) 253 Cal.App.2d 600, 603.

§8.2. Elements of informant privilege. The elements of the informant privilege are the following:

1. Informant's identity. The information sought to be disclosed must consist of the identity of an informant. Evid. C. §1041(a); 2 Witkin, California Evidence (5th ed.), Witnesses §324. This privilege protects only the informant's identity and not the contents of the informant's statements unless the contents would disclose or tend to disclose the informant's identity. See Evid. C. §1041(a); People v. Otte (2d Dist.1989) 214 Cal.App.3d 1522, 1531.

2. Informant requirements. The person whose identity is sought must qualify as an informant. See Evid. C. §1041(a). To qualify as an informant, the person must do all the following:

(1) Disclosure of violation of law. The informant must provide information purporting to disclose a violation of a law of the United States, the State of California, or a California public entity. Evid. C. §1041(a). The disclosed violation need not be a violation committed by the defendant or any other particular person. People v. Bradley (3d Dist.2017) 7 Cal.App.5th 607, 618-19.

(2) Disclosure in confidence. The informant must provide the information in confidence. Evid. C. §1041(b). In determining whether the information was disclosed in confidence, courts look at the nature of the investigation and not whether the informant believed or requested that her identity would be kept confidential. See Otte, 214 Cal.App.3d at 1532; Jessup v. Superior Ct. (1st Dist.1957) 151 Cal.App.2d 102, 108. If the nature of investigation would cause the public interest in protecting the flow of information to law enforcement to suffer if the informant's identity were disclosed, then the information will be considered to have been disclosed in confidence. See Otte, 214 Cal.App.3d at 1531-32. Thus the "in confidence" requirement eliminates from the scope of the privilege most eyewitnesses who simply provide information to authorities during an interview. Id. at 1531; People v. Lanfrey (6th Dist.1988) 204 Cal.App.3d 491, 498. Information provided by a drug informant, however, likely will be made in confidence because there is a recognized public interest in shielding a drug informant's identity. See Otte, 214 Cal.App.3d at 1533-34.

Note
Informants include individuals who have a history of working as informants as well as witnesses and others who provide information to police on a one-time basis. See Lanfrey, 204 Cal.App.3d at 498. Informants also include participants in a crime as well as individuals who witnessed the commission of the crime or its aftermath.

(3) Disclosure to law enforcement. The informant must provide the information to (1) a law-enforcement officer, (2) a representative of an administrative agency charged with the administration or enforcement of the law allegedly violated, or (3) any person for the purpose of transmitting the information to either a law-enforcement officer or a representative. Evid. C. §1041(b); see Rubin v. City of L.A. (2d Dist.1987) 190 Cal.App.3d 560, 583 n.20. For purposes of Evid. C. §1041(b)(3), a "person" includes a volunteer or employee of a "crime-stopper organization," which is a private, nonprofit organization that accepts and expends donations used to reward persons who report information about alleged criminal activity and that forwards the information to the appropriate law-enforcement agency. Evid. C. §1041(d).

3. Disclosure of identity prohibited. The disclosure of the informant's identity must be either prohibited by law or against the public interest.

(1) Disclosure prohibited by state or federal law. If disclosure of the informant's identity is prohibited by state or federal law, the public entity can refuse to disclose and prevent others from disclosing the informant's identity. Evid. C. §1041(a)(1).

(2) Disclosure against public interest. If disclosure of the informant's identity is against the public interest, the public entity can refuse to disclose and prevent others from disclosing the informant's identity. Evid. C. §1041(a)(2). Disclosure is against the public interest when the need for confidentiality outweighs the need for disclosure in the interest of justice. Evid. C. §1041(a)(2); People v. Acevedo (2d Dist.2012) 209 Cal.App.4th 1040, 1053. In a criminal proceeding, disclosure is in the interest of justice if the informant is a material witness on the issue of guilt and a failure to disclose the informant's identity would deprive the defendant of a fair trial. See People v. Lawley (2002) 27 Cal.4th 102, 159; People v. Borunda (1974) 11 Cal.3d 523, 527. For a discussion of how this standard is established, see "To challenge materiality of witness," ch. 4-C, §8.4.3(1).

§8.3. Waiver of informant privilege. An informant's identity is confidential and both the public entity and any individual authorized by the entity, including the officer who typically would have gained the information, have the right to refuse disclosure. See Evid. C. §1041(a). Therefore, the privilege can arguably be waived only by the disclosure, or consent to disclosure, of the informant's identity by the entity or an authorized person. See People v. Hobbs (1994) 7 Cal.4th 948, 958 (privilege no longer applies when informant's identity has been disclosed); People v. Navarro (2d Dist.2006) 138 Cal.App.4th 146, 163 (same). But if the identity of the informer is made known to the defendant by someone other than the public entity or an authorized individual, the privilege can still be invoked. See People v....