Informants Privilege Under the New Jersey Rules of Evidence
In New Jersey, law enforcement routinely relies on informants in assisting narcotics investigations and drug prosecutions. In another article entitled New Jersey Discovery Rules for Cooperating Witness/Confidential Informant in Drug Cases we outlined what is discoverable information in a criminal case that involves police use of a cooperating witness. In addition to the limitations discussed in the previous article, specifically that defense may not be able to obtain use of cooperating witness in drug prosecutions not related to prosecution presently before the court, there is another limitation known as the “informants privilege.”
The informants privilege, contained in New Jersey Rules of Evidence 516, permits the State of New Jersey to refuse to disclose the identity of a confidential informant, unless certain information is presented to the court. Defense must show either that the identity of the informant has already been disclosed or that disclosure of the identity of the informant “is essential to assure fair determination of the issues.” What constitutes a “fair determination of the issues” was discussed in State v. Milligan.