Informer, You Know Say: Delaware Court Finds Exception to Informant Privilege Not Triggered

Delaware Rule of Evidence 509(a) states that

The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law-enforcement officer or member of a legislative committee or its staff conducting an investigation.

That said, Delaware Rule of Evidence 509(c) allows for this informant privilege to be pierced

If it appears … that an informer may be able to give testimony which would materially aid the defense.

So, how does a court determine whether the privilege is pierced in practice? Let’s take a look at the recent opinion of the Superior Court of Delaware in State v. Johnson, 2014 WL 3943103 (Del.Super. 2014).

In Johnson,

the police used a confidential informant to make a controlled buy from Charles Johnson’s co-defendant, Victor Burgos. The defendant, Charles Johnson, came to the police’s attention during surveillance of Burgos and the confidential informant allegedly drove up in a car during the controlled buy transaction between the confidential informant and the co-defendant Burgos. It is alleged that the police followed Johnson after Johnson’s interaction with Burgos. In the meantime, during the simultaneous investigation of Burgos—specifically, a search warrant was executed and the police learned that the heroin sold to the confidential informant in the controlled buy with Burgos was obtained by Burgos from the car that was driven by defendant Charles Johnson and was under surveillance.

Johnson thereafter moved for disclosure of the identity of the confidential informant. In response, the court noted that the Supreme Court of Delaware has concluded that “[a] defendant attempting to invoke the exception must show, beyond mere speculation, that the confidential informant may be able to give testimony that would materially aid the defenses.”

The court then noted that it had previously

described four situations in which the issue of disclosing the informer’s identity arises: (1) the informer is used merely to establish probable cause for a search; (2) the informer witnessed the criminal act; (3) the informer participated in, but was not a party to the illegal transaction; and (4) the informer was an actual party to the illegal transaction….while the privilege is generally protected in the first scenario and disclosure is generally required in the fourth scenario, there is no general rule for the second and third scenarios. Under the second and third scenarios, “disclosure of the informer’s identity is required only if the trial judge determines that the informer’s testimony is material to the defense.”

Johnson argued that the CI in his case fell under the fourth scenario because he was a party to the illegal transaction: the controlled buy. The court disagreed, finding that while “the confidential informant was a party to the controlled drug buy with Burgos, defendant Charles Johnson’s co-defendant….the confidential informant was not a party to the alleged transaction between co-defendant Burgos and defendant Charles Johnson.”

That seems like a fine line to me, but it allowed the court to apply the materiality standard and conclude

that defendant Johnson has not met his burden of proving how disclosure of the identity of the confidential informant would materially aid his defense. The confidential informant, at best, has only minimal information about how Burgos implicated Johnson as Burgos’ supplier. Because the other evidence gathered independently by the State significantly outweighs this single piece of evidence supplied by the confidential informant, the Defendant has not shown that disclosure of the identity of the confidential informant would materially aid his defense. For example, there was no interaction between the confidential informant and defendant Johnson. And Burgos can be challenged directly regarding whether or not Burgos implicated defendant Johnson as Burgos’ supplier.

-CM