Rule 508 of the Texas Rules of evidence governs when the state has to reveal the identity of a confidential informant.
(a) Rule of Privilege. 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.
(b) Who May Claim. The privilege may be claimed by an appropriate representative of the public entity to which the information was furnished, except the privilege shall not be allowed in criminal cases if the state objects.
(c) Exceptions.
(1) Voluntary disclosure; informer a witness. No privilege exists under this rule if the identity of the informer or the informer’s interest in the subject matter of the communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer’s own action, or if the informer appears as a witness for the public entity.
(2) Testimony on merits. If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of a material issue on the merits in a civil case to which the public entity is a party, or on guilt or innocence in a criminal case, and the public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the court may direct that testimony be taken if it finds that the matter cannot be resolved satisfactorily upon affidavit. If the court finds that there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose the informer’s identity, the court in a civil case may make any order that justice requires, and in a criminal case shall, on motion of the defendant, and may, on the court’s own motion, dismiss the charges as to which the testimony would relate. Evidence submitted to the court shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity. All counsel and parties shall be permitted to be present at every stage of proceedings under this subdivision except a showing in camera, at which no counsel or party shall be permitted to be present.
(3) Legality of obtaining evidence. If information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the court is not satisfied that the information was received from an informer reasonably believed to be reliable or credible, it may require the identity of the informer to be disclosed. The court shall, on request of the public entity, direct that the disclosure be made in camera. All counsel and parties concerned with the issue of legality shall be permitted to be present at every stage of proceedings under this subdivision except a disclosure in camera, at which no counsel or party shall be permitted to be present. If disclosure of the identity of the informer is made in camera, the record thereof shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity.
Discussion
The state does not have to claim the privilige not to disclose the identity of the confidential informant in writing. In order for a court to order the prosecution to disclose the identity of a confidential informant, informer’s potential testimony must significantly aid defendant, and mere conjecture or supposition about possible relevancy is insufficient. The defendant has the burden to prove that the informant’s testimony is relevant. Essentially, the issue is whether or not the informants testimony will make any element in the indictment more or less probable or whether the informant’s testimony will help determine whether the search of the defendant was justified.
When an informant is an eyewitness to an alleged offense, the informant can give testimony necessary to a fair determination of the issues of guilt or innocence, and thus the state is required to reveal the informant’s identity. For example, if a confidential informant is present during a drug transaction and defendant’s arrest and that informant quotes an asking price for cocaine, defendant is entitled to disclosure of informant’s name.
A police officer normally must apply for a search warrant with an affidavit. If the confidential informant only supplies information establishing probable cause for issuance of a search warrant the state does not necessarily need to reveal their identity. In search warrant cases, the defendant must show that the officer did not believe the informant to be reliable or credible at time he made the affidavit in order to force the state to disclose the identity of the informant. The courts will not allow disclosure of an informant if the police can establish that the informant is a reliable source of information. One basis for reliability is whether the confidential informant has suppled information in the past that has proven to be reliable. Another indicator or reliability is whether the informant has been convicted of a felony or a crime of moral turpitude such as theft.
If the defendant claims entrapment, he must show the confidential informant had knowledge of what was offered to defendant as an inducement to participate in drug transaction and that the informer was present at time of defendant’s arrest.
In the past, there were three circumstances in which the state was required to reveal the identity of the informant, 1) when informer participated in offense, 2) the informant was present at time of offense or arrest, or 3) the informant was otherwise shown to be material witness to transaction or regarding whether defendant knowingly committed offense; Now the defendant is only required to make plausible showing that informer could give testimony necessary to fair determination of guilt because the defendant may not know nature of informant’s testimony. If the defendant shows that informer’s information may be important, the court is required to hold an evidentiary hearing to determine whether disclosure is necessary. An in camera hearing regarding confidential informant’s identity is required if defendant makes plausible showing of how informant’s information could be necessary to fair determination of his guilt or innocence.
Evidence that informer told police that narcotics defendant was engaged in drug trafficking, that police arranged for informer to go to defendant’s apartment, that informer emerged with methamphetamine and told police he had purchased it from defendant, and that police used informer’s information to procure search warrant was sufficient showing that informer could give testimony necessary to fair determination of guilt to require trial court to conduct in camera hearing on defendant’s motion to disclose informant’s identity to determine whether informer could supply material information as to defendant’s possession of drugs, or had information relevant to possible entrapment defense. Bodin v. State (Cr.App.1991) 807 S.W. 2d 313
There is now a four-step process for resolving prosecution claims of privilege: (1) the evidence must show that the informer may be able to give necessary evidence, (2) the prosecution must invoke the privilege, (3) the trial court must permit the prosecution to show in camera whether the informer can give the testimony, and (4) if the court determines the informer can give the testimony, and the prosecution does not disclose their identity, the charge must be dismissed.
