Disclosing the Identity of a Confidential Informant

Confidential Informant Law

A confidential informant can only stay confidential for so long.
When can the identity of a confidential informant be disclosed?

A Utah County officer was informed by a confidential informant that M.G. was selling ecstasy and had plans to attend a rave with friends. Consequently, officers pulled over a vehicle with M.G. driving and four passengers. The officers found the ecstasy pills in several locations of the vehicle. Kyler Nielsen, a passenger of the vehicle, admitted that the backpack that contained ecstasy pills was his, but he said that the ecstasy belonged to the driver. Nevertheless, Mr. Nielsen was charged with possession of a controlled substance. Mr. Nielsen moved to compel the State to reveal information about the confidential informant, but the State opposed the motion.

Rule 505 of the Utah Rules of Evidence grants the State the privilege to refuse to disclose the identity of a confidential informant unless the informer’s identity has already been disclosed or the informer appears as a government witness. However, if the State invokes this privilege and there is a reasonable probability that the informer can give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal case, the district court shall dismiss the charges to which the testimony would relate. To determine if the informant had knowledge relevant to Mr. Nielsen’s guilt or innocence, the district court decided to conduct an in camera interview, but this interview never happened. M.G. threatened on social media that the informant would be hurt if discovered, so the informant refused to participate.

The court applied a three-factor balancing test that weighed the defendant’s need for disclosure in order to prepare a defense, the potential safety hazards to the persons involved, and the public interest in preserving the flow of information from informants. State v. Forshee, 611 P.2d 1222, 1225 (Utah Sup.Ct. 1980). The district court then concluded that rule 505 did not require it to dismiss the charges against Mr. Nielsen. On appeal, the Utah Supreme Court addressed the question of whether the district court applied the correct legal standard. It reviewed the district court’s decision de novo.

Rule 36 of the Utah Rules of Evidence was adopted in 1971, and that rule was in effect when Forshee was decided. Rule 36 stated that a witness had a privilege to refuse to disclose the identity of an informant unless disclosure of his identity is essential to assure a fair determination of the issues. In 1983, rule 36 was removed along with all other privilege rules from the Utah Rules of Evidence. A new rule was adopted and amended, and then several rules were adopted that describe the privileges acknowledged in Utah (including rule 505).

One argument the State made was that because some of the language from the former rule 36 appears in the current rule 505, the Forshee balancing test was “transplanted” into the new rule.

The Utah Supreme Court concluded that using Forshee as a source of meaning for rule 505 is problematic because Forshee did not tie its balancing test to an interpretation of the language of rule 36. Therefore, there is no interpretation attached to a certain word or phrase in rule 36 that can be carried forward to rule 505. The court also discussed that Forshee misconstrued rule 36 itself, and the plain language in rule 505 restores the proper scope of the analysis. Mr. Nielsen’s conviction was reversed and remanded for further proceedings. The trial court must conduct proceedings consistent with rule 505. The Utah Supreme Court explained that “once the government invokes the privilege, the court must make a determination of whether an informer may be able to give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal case.” If the district court decides that rule 505 permits dismissal, the State can waive the confidential informant privilege and retry Mr. Nielsen, or the State can choose to assert the privilege. If the privilege is asserted, the judge can dismiss the charge against Nielsen upon a motion from the defense, or the judge can dismiss the charges on the judge’s own motion.

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