Super. 252, 258-59 (App. Div. 1971). Disclosure is also
generally denied where an informer merely introduces
police to defendant but does not participate in the crime.
State v. Florez, 134 N.J. at 579; State v. Varona, 242 N.J.
Super. 474, 479-80 (App. Div.), certif. den., 122 N.J. 386
(1990). Moreover, mere presence at the criminal event
is not enough to warrant disclosure. State v. Salley, 264
N.J. Super. at 101; State v. Booker, 86 N.J. Super. at 179.
As the Salley Court explained, “we know of no case
holding that an informer must be revealed when he was
no more than a witness to the criminal event.” 264 N.J.
Super at 100-01. Where, however, the informer is an
active participant and/or a material witness on the issue
of guilt or innocence, when defendant may reasonably
assert the defense of entrapment, or when fundamental
principles of fairness so require, disclosure may be
required depending on the various facts and
circumstances. State v. Florez, 134 N.J. at 579 (where the
informer was employed on a contingent fee basis and
played a central and critical role in the reverse drug sting
which resulted in defendant’s arrest, the trial court erred
in failing to require the State to reveal the informer’s
identity); State v. Oliver, 50 N.J. at 45; State v. Roundtree,
118 N.J. Super. at 31-32; see also Roviaro v. United States,
supra (disclosure was required where informer was sole
participant in criminal event and a material witness to
facts of relevance to issues of guilt and testimony was
critical to entrapment claim).
The informer’s privilege covers the informer’s
identity and not the contents of his communications
with the State. However, if disclosure of those contents
would tend to reveal the informer’s identity, such
disclosure might be foreclosed. Grodjesk v. Faghani, 104
N.J. at 96; State v. Milligan, 71 N.J. at 383.
While N.J.R.E. 516 literally protects only the
identity of those who have disclosed information “to a
representative of the State or the United States or a
governmental division thereof,” it was stated in State v.
Gallagher, 274 N.J. Super. 285, 301-303 (App. Div.
1994), in dictum, that the informer’s privilege would
apply to communications made by an informer to private
security personnel where the information received from
the informer is immediately passed to the police. See also
State v. Biancamano, 284 N.J. Super. at 660 (extended
protection of privilege to an informer who provided
information to a school official). The suggestion in State
v. Postorino, 253 N.J. Super. at 107, that the privilege only
applies to a “paid professional confidential informant
with a continuing law enforcement relationship” is not
supported by other relevant case law. See Biunno, Current
N.J. Rules of Evidence, Comment 2 on N.J.R.E. 516
(2000).R. 3:13-3(c)(6) requires pretrial disclosure of the
names and addresses of any persons whom the prosecutor
knows to have relevant evidence or information,
including a designation by the prosecutor as to which of
those persons may be called as witnesses. Thus, under
this rule, the State must provide this information about
the informer unless it moves for a protective order under
R. 3:13-3(f). See State v. Wright, 312 N.J. Super. 442, 449
(App. Div. 1998), certif. denied, 156 N.J. 425 (1998);
State v. Postorino, 253 N.J. Super. 98, 103 (App. Div.
1991). R. 3:13-3(f)(1) allows the court to deny, restrict
or defer defendant’s discovery request for good cause on
the State’s motion. One of the factors the rule specifically
allows the court to consider in determining the propriety
of a protective order is the “maintenance of such secrecy
regarding informants as is required for effective
investigation of criminal activity.”
Where someone who may be a confidential
informant is involved in an illicit transaction, that
participation must be reported without identifying the
individual. State v. Cooper, 301 N.J. Super. 298 (App.
Div. 1997). Without this information, defendant would
have no effective opportunity to address the significance
of this information. Id. at 304. In Cooper, the failure of
the police report to mention the involvement of a
confidential informant during an undercover drug buy
was held to have denied defendant a fair trial and resulted
in a reversal of his conviction. In State v. Wright, 312 N.J.
Super. at 453, the Court held that neither double
jeopardy nor fundamental fairness precluded a retrial of
a defendant after the trial court vacated the defendant’s
conviction for the failure of the police to disclose the
existence of a confidential informant. However, the
Wright Court issued a stern warning that under similar
circumstances, it would “not hesitate to bar
reprosecution if law enforcement officers fail to disclose in
their report the existence of a confidential informant.” Id.
at 454.II. THE PRIVILEGE OF NON-DISCLOSURE
REGARDING THE VALIDITY OF WARRANTS
Disclosure of the identify of an informer is more
difficult to obtain in an attack on the validity of a warrant
where the issue is the preliminary one of probable cause
and not the guilt or innocence of the defendant. Whether
to require disclosure rests largely within the discretion of
the trial judge. McCray v. Illinois, 386 U.S. 300, 87 S.Ct.
1056 (1967); State v. Burnett, 42 N.J. 377, 388 (1964);
State v. Petillo, 61 N.J. 165, 173 (1972), cert. denied, 410