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.
In State v. Milligan, the New Jersey Supreme Court outlined the balancing factors that a court must consider when deciding whether to permit defense to know the identity of a police informant. State v. Milligan, 71 N.J. 373 (NJ 1976). The case had simple facts. An undercover New Jersey State Trooper “NARC” was participating in a narcotics investigation in Camden County and was introduced to the defendant by a confidential informant. The informant was present during the meeting and did participate in the discussion, but all negotiating of the final sale of heroin took place between the defendant and the NARC. The defendant lead the NARC and the informant back to his house, where the final purchase for 11 bags of heroin took place.
Six months after the sale took place, the defendant was arrested for possession and distribution of heroin. The defendant requested disclosure of the identity of the informant to refute the testimony provided by the NARC, arguing that the confidential informant was an “active participant” in the crime.
The New Jersey Supreme Court began by noting that while there is a governmental privilege to withhold the identity of informants who assist law enforcement, the privilege is not absolute and is subject to limitations. Illustrations of limitations where the informants privilege is considered inapplicable were:
1) Where the informer is an “active participant” in crime which defendant is prosecuted for. State v. Oliver 231 A.2d 805, 807, (N.J. 1967)
2) Where a defense of entrapment seems likely. State v. Dolce, 41 N.J. 422 (NJ 1964)
3) Where disclosure is mandated by fundamental principles of fairness to the accused Cashen v. Spann, 66 N.J. 541 (NJ 1975)
The court stated that a balancing test should be employed in deciding whether to disclose the identity of a police informant. That absent a strong showing of need, where the informant plays only a marginal role, courts should generally deny defense motion to disclose identity. Examples of what constitutes a marginal role include proving information or tips to the police participating in the preliminary stage of the criminal investigation. State v. Infante, 116 N.J. Super. 252 (NJ 1971) Proof that informant witnessed the criminal transaction or merely introduced the undercover agent to defendant, is generally not a sufficient showing to compel disclosure.
However where the informant is the only person (other than defendant) who could controvert, explain or amplify the testimony of the State’s principal witness, the informant’s identity must be disclosed.
The court listed the following factors in favor of disclosure of informant’s identity:
1) Inconsistencies in the testimony of the New Jersey State Trooper
2) Testimony of the informer would help corroborate or deny testimony
3) The length of time between the alleged offense and arrest
4) Defendants inability to recall what happened
The court balanced that with the following factors against disclosure of informant’s identity:
1) No showing of how disclosure would be helpful to defense
2) No assertion of the defense of entrapment which might justify disclosure
3) Speculative need of informant’s testimony
4) Informants limited involvement in the crime
5) Safety of the informant and importance of upholding the informant’s privilege to encourage others to testify
Weighing these factors the New Jersey Supreme Court decided to uphold the informants privilege and ruled against disclosure of the informant’s identity. The balancing factors are specific, but what constitutes disclosure to reach “fair determination of the issues” is a vague and open-ended determination. Failure of defense to raise the possibility of entrapment was also fatal to the defense’s argument for disclosure. In all the case highlights the importance of leaving no stone unturned, when making the argument for disclosure against the informants privilege.