| A defendant may file a motion requesting that the prosecution disclose the identity of their confidential informant. Typically information received from the confidential informant may be the basis of probable cause to support the issuance of an arrest warrant for the defendant.
Importance of Maintaining the Informant's Anonymity
It is important for the prosecution or police to maintain the confidentiality of its informants. If the informant's identity is disclosed, the disclosure could result in danger to the informant or the informant may choose not to disclose information to law enforcement officers in the future.
Motion Granted or Denied
In most instances such a request for the identity of a confidential informant is typically denied. However, in some instances the motion may be granted. If the motion is granted the prosecution may disclose the identity of the informant, dismiss the case, or opt not to use the information obtained from the informant, if possible. In order for the motion to be granted the defendant should argue either that the informant in question is pure fiction invented by the police and that the testimony of the informant is relevant to material matters in the case.
When to File the Motion
When the defendant files a motion to disclose the identity of a confidential informant there are actually two motions that may be filed depending upon when the defendant seeks to obtain the identity of the informant. The first motion that may be filed is the motion to discover the informant's identity at a pretrial hearing. The second motion that may be filed is a motion to discover the informant's identity for purposes of trial. If the defendant files a pretrial motion to disclose the informant's identity and that motion is denied, he may again file another motion to disclose the informant's identity during his trial.
Government's Privilege to Withhold the Identity of the Informant
The purpose of the government's privilege to withhold the disclosure of the identity of the informant is to encourage informants to continue to furnish information of violations of law to law enforcement officers. The purpose of the privilege is to protect the public interest and to assist in providing effective law enforcement. However, if the disclosure of the informant's identity is helpful, relevant to the defendant or is essential in order for the trial court to render a fair determination for cause, the privilege may be waived. It is within the trial court's discretion to require disclosure of the informant's identity. The trial court should balance the public interest against the defendant's right to prepare his defense.
Informant's Identity Revealed for Trial Purposes
In order for the trial court to grant the defendant's request to have the identity of the informant revealed for trial purposes, the defendant must demonstrate that the informant's presence in court is relevant and would be of assistance to the defendant. The following factors should be considered by the trial court in its decision on whether to grant the motion:
- What information will the informant testify to if present during the defendant's trial.
- What other witnesses are available to testify to the same information as the informant.
- A comparison of the informant's potential testimony to all other testimony.
- A determination as to which additional and relevant facts the informant would be able to testify to at the defendant's trial.
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