Discovery Disclosure: Confidential Source/Informant

Confidential Source Privilege

The State of Florida has a limited privilege to withhold the identity of its Confidential Informants. Simmons v. State, 887 So.2d 1283, 1284 (Fla. 2004). [1]

Fla.R. Crim. P. Rule 3.220(e) Restricting Disclosure. The court on its own initiative or on motion of counsel shall deny or partially restrict disclosures authorized by this rule upon a finding of substantial risk to any person of:

  1. Physical Harm or Intimidation,

  2. Bribery or Economic Reprisals, or

  3. Unnecessary annoyance or embarrassment,

Resulting from the disclosure, that outweighs any usefulness of the disclosure to either party.

Fla.R. Crim. P. Rule 3.220(g)(2) Informants. Disclosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or trial or a failure to disclose the informant’s identity will infringe the constitutional rights of the defendant.

Purpose

The furtherance and protection of the public interest in effective law enforcement; recognizing the obligation of citizens to communicate with law enforcement and, by preserving their anonymity, encouraging them to perform that obligation. Roviaro v. United States, 353 U.S. 53, 59 (1957).

Scope

“[W]here the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged." Roviaro v. United States, 353 U.S. 53, 60 (1957).

Moot Issue

“Once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable." Roviaro v. United States, 353 U.S. 53, 60 (1957).

Exception to the Privilege

The privilege must give way where the disclosure of the informer’s identity or content of the informer’s communication:

  1. Is relevant and helpful to the defense of an accused,

OR

  1. Is essential to a fair determination of a cause.

Simmons v. State, 887 So.2d 1283, 1284 (Fla. 2004) citing to Roviaro.

Burden: The burden is on the Defense to establish why either or both of the exceptions apply. Treverrow v. State, 194 So.2d 250, 252 (Fla. 1967) and State v. Harklerode, 567 So.2d 982 (5th DCA 1990).

Relevant and Helpful: The defendant must allege a legally recognizable defense to the crime charged and support the defense with sworn evidence. State v. Harklerode, 567 So.2d 982, 984 (5th DCA 1990).

Fair Determination: The focus is on general due process concerns. Disclosure on this ground has been consistently denied by Florida courts where the Confidential Informant acted as a mere “tipster" or merely provided police with probable cause for a search or arrest. State v. Harklerode, 567 So.2d 982, 984 (5th DCA 1990).

Procedure: If the defendant meets the burden of establishing an exception to the nondisclosure rule, the proper procedure would be for the court to hold an in camera hearing. State v. Harklerode, 567 So.2d 982, 985 (5th DCA 1990).

But See: State v. Zamora, 534 So.2d 864 (3rd DCA 1988): Requirement that court must order in camera review of confidential informant's testimony to determine whether testimony is relevant and helpful to defense of accused before dismissing an information or indictment for failure to disclose informant to defendant only applies where disclosure of confidential informant is sought on grounds that informant's identity or content of his communication is relevant and helpful to defense of an accused.

Specific Cases

Roviaro v. United States, 353 U.S. 53 (1957).

Informant to be disclosed where Informer was sole participant, together with accused in transaction charged. Informer was the only witness in position to amplify or contradict testimony of government witnesses, and a government witness testified that informer had denied knowing accused or ever having seen him before.

Harris v. State, 939 So.2d 338 (Fla. 5th DCA 2006).

Defendant was not entitled to disclosure of the identity of confidential informant who, together with agent who was driving vehicle, made a drug purchase from defendant. There was no showing that testimony of informant would vary materially from that of police; informant was conduit and sale was directly to law enforcement officer. There was speculation that the informant’s testimony could possibly support the attorney’s contention that defendant was not the individual involved in the transaction, but other than noting that the incident was initiated by police, defense of entrapment was not mentioned or supported.

State v. Harklerode, 567 So.2d 982 (5th DCA 1990).

Defendant’s claim that stranger, who may have been confidential informant, left drugs in the car failed to overcome State’s privilege of nondisclosure of confidential informant’s identity, where informant had alibi indicating that he was not the stranger in the car.

[1] See also, “Personal Safety" Exception: Allowing the State to withhold full access to witnesses. State v. Hassberger, 350 So.2d 1 (Fla. 1977) and United Statesv. Palermo, 410 F.2d 468 (7th Cir. 1969).