INFORMANTSINFORMANTSINFORMANTSINFORMANTSINFORMANTS
I. GOVERNMENTAL PRIVILEGE TO WITH-
HOLD INFORMER’S IDENTITY
The informer’s privilege - the privilege against
disclosure of the identity of persons who supply the
government with information concerning the commis-
sion of crimes - is an ancient doctrine with its roots in the
English common law and is codified in N.J.S.A. 2A:84A-
28 and N.J.R.E. 516 which both provide in full:
A witness has a privilege to refuse to disclose the identity
of a person who has furnished information purporting to
disclose a violation of a provision of the laws of this State
or of the United States to a representative of the State or
the United States or a governmental division thereof,
charged with the duty of enforcing that provision, and
evidence thereof is inadmissible, unless the judge finds
that (a) the identity of the person furnishing the
information has already been otherwise disclosed or (b)
disclosure of his identity is essential to assure a fair
determination of the issues.
The privilege is most frequently asserted in criminal
prosecutions. State v. Salley, 264 N.J. Super. 91, 96 (App.
Div. 1993). It is founded upon sound public policy to
protect effective law enforcement by encouraging citizens
to cooperate with government officials without fear of
reprisals. Maudsley v. State, 323 N.J. Super. 579, 589
(App. Div. 1999).
In general, the informer’s privilege permits the State
to withhold disclosure of an informer’s identity. This
privilege, however, is not absolute. Grodjesk v. Faghani,
104 N.J. 89, 98 (1986). It yields when it is shown that
disclosure would be “relevant and helpful to the defense
of an accused” or “essential to a fair determination” of the
case. State v. Florez, 134 N.J. 570, 578 (1994); State v.
Salley, 264 N.J. Super. at 97. The burden rests upon the
party opposing the privilege to show exceptional
circumstances justifying disclosure. State v. Florez, 134
N.J. at 578.
There is no fixed rule with respect to when disclosure
is justified and the decision should be fact specific.
Whether disclosure should be made depends upon a
proper balance of “the particular circumstances of each
case, taking into consideration the crime charged, the
possible defenses, the possible significance of the
informer’s testimony, and other relevant factors.”
Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623,
629 (1957). In Roviaro, the Court identified three
instances where the privilege would not apply: 1) when
the disclosure of a communication would not reveal the
identity of the informer, 2) when the identity of the
informer was disclosed to those who would have cause to
resent the communication, and 3) when the principles of
fundamental fairness so required. 353 U.S. at 60-61, 77
S.Ct. at 627-28.Whether the circumstances warrant disclosure is a
matter addressed to the sound discretion of the trial
court. State v. Milligan, 71 N.J. 373, 384 (1976). The
court’s discretion is tempered by a presumption in favor
of protecting an informer’s identify, which can be
overcome only if defendant demonstrates a “substantial
showing of a need.” Cashen v. Spann, 77 N.J. 138, 142
(1978); State v. Oliver, 50 N.J. 39, 47 (1967).“Under most circumstances ... an informer’s identify
will be kept secret and will not be revealed for
insignificant or transient reasons.” State v. Foreshaw, 245
N.J. Super. 166, 181 (App. Div.), certif. denied, 126 N.J.
327 (1991); see also Matter of Application for Protective
Order, 282 N.J. Super. 244, 253-54 (App. Div. 1995).
For instance, New Jersey courts have not required
disclosure where defendant merely speculated that the
informer’s testimony was needed to show that defendant
was mistakenly identified, State v. Milligan, 71 N.J. at
391; State v. Booker, 86 N.J. Super. 175, 179 (App. Div.
1965); where defendant alleged that the informer’s
testimony would refresh defendant’s recollection, State v.
Milligan, 71 N.J. at 392; or where defendant sought
disclosure of the informer’s identity only to impeach the
credibility of a witness on a collateral matter, State v.
Medina, 201 N.J. Super. 565, 582-583 (App. Div.),
certif. denied, 102 N.J. 298 (1985). Likewise, our courts
have denied requests for disclosure where defendant
speculated that the informer would say something that
would lead to defendant’s acquittal. State v. Oliver, 50
N.J. at 42; State v. Morelli, 152 N.J. Super. 67, 74-5 (App.
Div. 1977).The extent of the informer’s participation in the
crime is a significant factor in deciding whether his or her
identify should be disclosed. For example, our courts
generally do not require disclosure where the informer
merely supplied information to the police or participated
in the preliminary investigation. State v. Milligan, 71 N.J.
at 387-89; State v. Biancamano, 284 N.J. Super. 654, 660
(App. Div. 1995), certif. denied, 143 N.J. 516 (1996);
State v. Foreshaw, 245 N.J. Super. at 183; State v.
Singleton, 158 N.J. Super. 517, 526 (App. Div.), certif.
denied, 79 N.J. 470 (1978); State v. Infante, 116 N.J.