RULE 509. IDENTITY OF INFORMER
(a) Rule of privilege. The United States or a state or subdivision
of a state has a
privilege to refuse to disclose the identity of a person an individual
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
(b) Who may claim. The privilege under this rule may be claimed by an
representative of the
public entity government to which the
information was furnished.
(1) Voluntary disclosure; informer a witness. No privilege exists under
this rule if the
identity of the informer or his the informer's interest in the subject
matter of his the
informer's communication has been disclosed to those by a holder of
the privilege or by the
informer's own action to persons who would have cause to resent the communication
holder of the privilege or by the informer's own action, or if the informer appears as a
witness for the government.
(2) Testimony on relevant issue (d) Procedures. If it appears
in the case that an informer
may be able to give testimony relevant to any an issue in a criminal
case, or to a fair
determination of a material issue on the merits in a civil case to which a public
government is a party, and the informed public entity government
invokes the privilege, the
court shall must give the public entity
government an opportunity to show in camera
chambers facts relevant to determining whether the informer can, in fact, supply
testimony. The showing will ordinarily be in the form of affidavits by
affidavit, 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 there is a reasonable probability that the informer can give
the testimony, and the public entity government elects not to disclose
his the informer's
identity, in criminal cases the court on motion of the defendant or on its own motion
must grant appropriate relief, which may include one or more of the following:
prosecuting attorney to comply, granting the defendant additional time or a continuance,
relieving the defendant from making disclosures otherwise required of him
prohibiting the prosecuting attorney from introducing specified evidence, and dismissing
charges. In civil cases, the court may make any order the interests of justice require.
Evidence submitted to the court shall must be sealed and preserved to
be made available to
the appellate court in the event of an appeal, and the contents shall
may not otherwise be
revealed without consent of the informed public entity government.
All counsel and parties
are permitted to may be present at every stage of proceedings
a proceeding under this
subdivision except a showing in camera at which chambers, if the court has
no counsel or party shall be permitted to may be present.
(3) (e) 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 must, on request of the government, direct that the disclosure be
made in camera
chambers. All counsel and parties concerned with the issue of legality
shall must be
permitted to be present at every stage of proceedings a proceeding
under this subdivision
except a disclosure in camera chambers, at which no counsel or party
shall be permitted to
may be present. If disclosure of the identity of the informer is made in
camera chambers, the
record thereof shall must be sealed and preserved to be made available
to the appellate court
in the event of an appeal, and the contents shall may not otherwise be
consent of the government.
Rule 509 was amended, effective March 1, 2014.
, is modeled after Rule 509 of the Uniform
Rules of Evidence (1974), and protects,
in certain instances, the identity of one who furnishes information that aids the government
in the investigation of violations of the law. The need for a privilege of this nature is clear.
As McCormick has stated:
"Informers are shy and timorous folk, whether they are undercover agents of the police or merely citizens stepping forward with information about violations of law, and if their names were subject to be readily revealed, this enormously important aid to law enforcement would be almost cut off." McCormick on Evidence § 111 at 236 (2d ed. 1972).
Thus, subdivision (a) grants a privilege that protects the identity of an informer. Although
often called the "informer's privilege," the true holder of the privilege is the governmental
entity to which the information is furnished. The privilege protects only the identity of the
informer and not
his the informer's communication, except to the
extent that protection of
the contents of the communication is necessary to preserve the informer's anonymity. 8
Wigmore on Evidence § 2374 at 765 (McNaughton Rev. 1961).
Invocation of the privilege is most likely to occur in the context of a criminal proceeding, but the privilege is not limited to those proceedings. Prosecutions of civil violations and investigations by legislative bodies may include the use of informers and the possibility of reprisal against them. The privilege is extended to protect the informer's identity in those situations.
Subdivision (b) provides that the privilege may be claimed by "an appropriate representative" of the entity to which the information was given. Normally, this representative will be counsel. However, in cases in which neither the United States nor the State of North Dakota is a party, other representatives should be accepted as proper claimants. See Advisory Committee's Note to Rule 510, Deleted and Superseded Material, Federal Rules of Evidence Pamphlet (West Pub. Co. 1975).
(1) lists two instances in which the privilege does not
apply. The first is
whenever the identity of the informer or his the informer's interest in
the subject matter of
the communication "has been disclosed to those "who would have
cause to resent the
communication." This language, taken from the landmark opinion of Roviaro v. United
States, 353 U.S. 53, 60, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957), is designed to remove the
privilege in those cases in which the identity of an informer is already known to those from
whom it was to be shielded, and, at the same time, to leave the privilege intact whenever
disclosure is otherwise made, e.g., to other enforcement authorities.
Disclosure may be made by the government or by the informer
informer, who is not the holder of the privilege, essentially to "waive" its protection is a
minor departure from the law of privileges for, normally, only a holder or his
may effect a waiver. The nature of this particular privilege and the practical necessities
involved dictate this result; the government could not reasonably restrain an informer's desire
to disclose his the informer's identity.
The second exception stated in
this subsection subdivision (c) is
that the privilege is
inapplicable whenever the informer appears as a witness for the government. This exception
is of constitutional origin. A defendant may not be denied his rights to confrontation of
witnesses and to due process of law on the basis of an informer's privilege. Smith v. Illinois,
390 U.S. 129, 88 S. Ct. 748, 19 L. Ed. 2d 956 (1968).
(c)(2) (d) states that the general rule of privilege
does not apply whenever it
appears that the informer may be able to give testimony relevant to "any issue in a criminal
case" or to "a fair determination of a material issue on the merits in a civil case." The
doctrine supporting the exception is essentially one of fairness. In each case, or at least in
criminal prosecutions, a balancing of the conflicting interests must be made:
"The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on 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, supra, 353 U.S. 62.
In Roviaro, the informer was also a participant in the crime. Since that decision, participation in the crime has been deemed to be a critical factor in the decision of whether disclosure of an informer's identity should be required. See United States v. Clark, 482 F.2d 103 (5th Cir. 1973). See generally, the cases collected in 2 Wright, Federal Practice and Procedure, § 406 (1969). An informer's participation in a crime will be a factor to consider under this rule, not in and of itself, but as it bears upon the relevancy and significance of the informer's potential testimony.
If it appears that an informer may be able to give relevant testimony and the government,
when informed of this fact, invokes the privilege, this rule provides the procedure by which
the validity of the claim is to be tested. The court shall review, in
chambers, the facts
relevant to determining whether relevant information may be obtainable from the informer.
This limited intrusion into what may be privileged material is deemed to be the most
equitable manner of balancing the conflicting interests involved.
If the court finds that disclosure is in order and the government refuses to reveal the informer's identity, the court, in its discretion, may grant appropriate relief, as delineated in the rule.
Subdivision (e) details the extent of the privilege under this rule when an informer is relied upon to establish the legality of the means by which evidence was obtained. This subdivision was derived from a rule of privilege that was proposed for, but never enacted as part of, the Federal Rules of Evidence.
Rule 509 was amended, effective March 1, 2014, to follow the 1999 amendments to Uniform Rule of Evidence 509. Several occurrences of the term "person" have been replaced with the term "individual," which is intended to mean a human being. The amendments to the rule's terminology are not intended to change any result in any ruling on evidence admissibility.
Sources: Joint Procedure Committee Minutes
: of April
25-26, 2013, page 34; January 29,
1976, pages 9, 10. Rule 509, Uniform Rules of Evidence (1974);
Proposed Rule 509(c)(3),
Federal Rules of Evidence (not enacted).