Defendant's Right To A Confidential Informant's Identity: Louisiana Law Review
Defendant's Right To A Confidential Informant's Identity: Louisiana Law Review
Volume 40 | Number 1
Fall 1979
Repository Citation
Michael D. Bewers, Defendant's Right to a Confidential Informant's Identity, 40 La. L. Rev. (1979)
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COMMENTS
DEFENDANT'S RIGHT TO A CONFIDENTIAL INFORMANT'S
IDENTITY
General Considerations
1. See Hatchett, Discovering the Identity of the Informer, 46 FLA. B.J. 644
(1972).
2. Roviaro v. United States, 353 U.S. 53, 59-60 (1957); 8 J. WIGMORE, EVIDENCE §
2374, at 752 (3d ed. 1940). According to some authorities, the one alleged to be the in-
formant may claim the privilege, and when neither the government nor the informer is
represented at trial, some jurisdictions allow the judge to invoke it for the absent
holder. See C. MCCORMICK, EVIDENCE § 111, at 237 (2d ed. 1972), and cases cited
therein.
3. E.g., Scher v. United States, 305 U.S. 251 (1938); Cannon v. United States, 158
F.2d 952 (5th Cir. 1946); C. MCCORMICK, supra note 2, § 111, at 236; 2 J. WEINSTEIN,
EVIDENCE, UNITED STATES RULES 510-19 (1978); J. WIGMORE, supra note 2.
UNIFORM RULE OF EVIDENCE 36 provides:
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 government division thereof, charged with the duty of enforc-
ing 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.
See also FED. R. EVID. 501.
LOUISIANA LA W REVIEW [Vol. 40
the production of only so much evidence as is still available at the time of trial; he
may also have the right not to be tried at all if the available evidence of his in-
nocence is substantially incomplete.
Westen, supra note 9, at 594-95. Westen concludes that such an approach is hardly in-
evitable, and that as a matter of constitutional policy, the state should not be required
to produce witnesses who are unavailable through no fault of the prosecution or the
court. Id.
20. Westen, supra note 9, at 581. See also Westen, The Compulsory Process
Clause, 73 MICH. L. REv. 71, 159-77 (1974).
The choice can take one of two forms. If the evidence the defendant is seeking
would tend to impeach a prosecution witness, then the Sixth Amendment puts the
state to the choice between preserving the confidential nature of the privileged
information (and thus striking the prosecution witness testimony from the record),
or standing on the prosecution witness' testimony (and thus foregoing the con-
fidentiality of the privileged information). See, e.g., Davis v. Alaska, 415 U.S. 308,
320 (1974). On the other hand, if the evidence a defendant seeks would tend to
contradict the very elements of the charge against him, the Sixth Amendment
puts the prosecution to the choice between preserving the confidentiality of the
privileged information (and thus dropping the prosecution), or pursuing the pros-
ecution (and thus foregoing confidentiality). See, e.g., Roviaro v. United States,
353 U.S. 53, 60-61 (1957). Jencks v. United States, 353 U.S. 657, 670-72 (1957). See
also United States v. Reynolds, 345 U.S. 1, 12 (1953).
This proposed constitutional rule . . . rests on the assumption that the use of
an in camera inspection procedure will enable the trial court to determine
whether the privileged testimony is material and relevant to the defendant's case
before having to decide whether the witness' interest in secrecy should be over-
riden.
Westen, supra note 9, at 581 n.38. This writer fully agrees with the foregoing analysis
and will examine the in camera hearing in detail. See text at note 113, infra.
21. United States v. Nixon, 418 U.S. 683, 711 (1974) (dictum) (sixth amendment
overrides constitutionally based privilege for confidential communications between the
President and his advisors); Davis v. Alaska, 415 U.S. 308 (1974) (confrontation clause
overrides privilege for the confidentiality of juvenile court records); Chesney v. Robin-
son, 403 F. Supp. 306 (D. Conn. 1975) (confrontation clause overrides privilege for
grand jury testimony); Melendez v. Superintendent, Clinton Correctional Facility, 399
F. Supp. 430 (E.D.N.Y. 1975) (compulsory process overrides government informant's
privilege if defendant can show special need). See also Westen, supra note 9, at 627
n.164, for other cases cited therein.
22. Westen, supra note 9, at 627 n.164, and cases cited therein.
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23. See The Work of the Louisiana Appellate Courts for the 1969-1970
Term-Evidence, 31 LA. L. REV. 385 (1971); The Work of the Louisiana Appellate
Courts for the 1964-1965 Term-Evidence, 26 LA. L. REV. 617 (1966), reprinted in G.
PUGH, LoUISIANA EVIDENCE LAW 429, 431 (1974).
24. Federal Rule of Evidence 804 is not contra to this position, for although this
rule defines "unavailability as a witness" to include the situation in which the
declarant "is exempted by ruling of the court on the ground of privilege from testify-
ing concerning the subject matter of his statement," FED. R. EVID. 804, its hearsay ex-
ceptions are limited to four narrowly defined categories which rarely have anything to
do with an informant's hearsay statements offered for the truth of the matter
asserted. FED. R. EVID. 804. In addition its omnibus exception would be of no avail to
the prosecution, because it requires that the state disclose the name and address of
the unavailable declarant. FED. R. EVID. 804(5).
25. Westen, supra note 9, at 581. See note 38, infra, and note 21, supra. See also
Westen, supra note 20, at 159-77; The Work of the Louisiana Appellate Courts,
1974-1975 Term-Evidence, 36 LA. L. REV. 666 (1974), reprinted in G. PUGH, LOUISIANA
EVIDENCE LAW 221 (Supp. 1978). In Melendez v. Superintendent, Clinton Correctional
Facility, 399 F. Supp. 430 (E.D.N.Y. 1975), the court stated:
If he [the informant] is such a potential witness, then his testimony belongs in the
case, and if his identity is called for by the Petitioner, manifestly it cannot be
denied to him except in the service of some important interest, an interest that
outweighs the defendant's interest in access to witnesses in the control of the pros-
ecution.
399 F. Supp. at 437. Although Melendez was grounded explicitly on the right of com-
pulsory process, it still recognizes that a compelling state interest might override the
right of compulsory process.
LOUISIANA LA W REVIEW [Vol. 40
26. E.g., Ham v. South Carolina, 409 U.S. 524 (1973); Washington v. Texas, 388
U.S. 14 (1967); Gideon v. Wainwright, 372 U.S. 335 (1963); Lisenba v. California, 314
U.S. 219 (1941).
27. 353 U.S. 53 (1957).
28.
A further limitation on the applicability of the [informer's] privilege arises from
the fundamental requirements of fairness. Where the disclosure of an informer's
identity, or the contents of his communication, is relevant and helpful to the
defense of an accused, or is essential to the fair determination of a cause, the
privilege must give way. In these situations the trial court may require disclosure
and, if the Government withholds the information, dismiss the action.
Id at 60-61. Other limitations on the scope of the informer privilege include situations
where its invocation would not serve the privilege's underlying purpose.
Thus, where the disclosure of the contents of a communication will not tend to
reveal the identity of an informer, the contents are not privileged. Likewise, 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.
Id at 60.
29. The importance of the overheard conversation is that it strongly implies that
the defendant knew who "John Doe" was, and that, therefore, as the government sug-
gested to the Supreme Court, the trial court's failure to require disclosure would not
1979] COMMENTS
be prejudicial even if erroneous. Citing Sorrentino v. United States, 163 F.2d 627 (9th
Cir. 1947), the Court answered this argument by saying:
However, any indications that petitioner, at the time of the trial was aware of
John Doe's identity are contradicted by the testimony of Officer Bryson that John
Doe at police headquarters denied knowing, or ever having seen, petitioner. The
trial court made no factual finding that petitioner knew Doe's identity. On this
record we cannot assume that John Doe was known to petitioner, and if alive,
available to him as a witness. Nor can we conclude that John Doe died before the
trial.
353 U.S. at 60.
30. 353 U.S. at 62.
31. Id. at 64. The Court had earlier noted that where "knowledge" is an element
of the crime the testimony of a participating informant might be highly material. Id- at
63.
32. 386 U.S. 300 (1967).
LOUISIANA LA W REVIEW [Vol. 40
other hand, the disclosure of the informant's identity required in Roviaro and
sought at petitioner's trial was dictated by constitutional requirements, then peti-
tioner's constitutional rights may have been violated.
367 F. Supp. at 1029-30 (citations omitted).
39. The court cited numerous cases for the proposition that due process is the
equivalent of the basic concept of fairness. See note 26, supra.
40. United States v. Emory, 468 F.2d 1017, 1020-21 (8th Cir. 1972); Burwell v.
Teets, 245 F.2d 154, 165 (9th Cir. 1957), cert. denied, 355 U.S. 896 (1958).
41. United States ex reL Drew v. Myers, 327 F.2d 174, 180-81 (3d Cir.), cert.
denied, 379 U.S. 847 (1964); Hernandez v. Nelson, 298 F. Supp. 682, 685-87 (N.D. Cal.
1968), aff'd, 411 F.2d 619 (9th Cir. 1969).
42. 367 F. Supp. at 1034. The recent case of Pena v. LeFerve, 419 F. Supp. 112
(1976), following the rationale of the Connecticut federal district court in Hawkins,
stated:
[Ilt is probable that the Supreme Court was concerned not merely with the for-
mulation of a rule of evidence in federal criminal trials: at stake was the basic
fairness of the proceedings against Roviaro. And, the denial of basic fairness in a
criminal proceeding is a "violation of the Constitution ... of the United States."
28 U.S.C. § 2254(a). Furthermore, where the very integrity of the fact finding pro-
cess is at issue, i.e., in the presentation or exclusion of evidence directly relating
to an accused's innocence or guilt at trial, the Supreme Court has determined the
accused's "fundamental" rights to be of constitutional origin.
419 F. Supp. at 117. The Pena Court went on to note that Roviaro did not lay down a
blanket rule requiring disclosure of a confidential informant's identity whenever a
defendant demanded it. The court concluded that "when the factors are considered
together: the minimal role the informer played, the strong identification testimony, the
lack of any allegation of entrapment, and the paucity of petitioner's alibi defense, lead
to the conclusion that the trial court properly denied petitioner's request for
disclosure." 419 F. Supp. at 118.
LOUISIANA LA W REVIEW [Vol. 40
43. See Chambers v. Mississippi, 410 U.S. 284 (1973); Washington v. Texas, 388
U.S. 14 (1967). In Washington, the compulsory process clause was held to supersede a
rule of competence on the ground that the state's competency rule had the effect of
abridging defendant's right to present a defense. In Chambers, the Court found a
violation of the due process clause when two traditional state evidentiary rules effec-
tively denied the defendant a fair trial. The trial court had invoked the "voucher
rule"-that the party calling a witness vouches for the witness's credibility-to pro-
hibit Chambers from impeaching his own witness. This witness had signed a written
confession and made other self-incriminating statements shortly after the crime occur-
red but had repudiated his confession by the time Chambers came to trial. The state
did not call this witness to the stand, because although he was willing to testify that
he was himself innocent, he did not claim to possess information linking Chambers to
the crime. The trial court also employed the hearsay rule to prohibit Chambers from
offering the testimony of three witnesses to whom this witness had made oral confes-
sions shortly after the crime. Westen, who was counsel for Chambers before the
United States Supreme Court, notes:
[The Court] apparently for jurisdictional reasons .... based its decision not on the
rights of confrontation and compulsory process but on the ground that the defen-
dant had been denied a fair trial under the due process clause. Nonetheless, there
is reason to believe that under other procedural circumstances the Court would
have decided Chambers directly on Sixth Amendment grounds . . ..
Westen, supra note 9, at 607.
44. Westen, supra note 20, at 161. See text at note 20, supra.
19791 COMMENTS
Roviaro's Progeny
Because the Supreme Court has not specifically recognized a
constitutional right to learn the identity of an informant, most
federal and state courts have, in turn, side-stepped constitutional
challenges to the informer privilege. Following the guidelines an-
nounced in Roviaro, the majority of the decisions employ a balancing
test in order to ascertain whether disclosure is necessary in a par-
ticular case. As one commentator has pointed out, the courts have
developed what amounts to a checklist of elements which must exist
before an accused can surmount the informer's privilege." This
checklist includes: the trial stage must have been reached; 7 the in-
formant must have participated significantly in the criminal act with
which the accused is charged;' 8 the crime must be of such a nature
that the informant's testimony will be useful in the formulation of
realistic defenses;'9 and the informer must be a stranger to the ac-
cused." The courts have also considered several possible defenses
enumerated in Roviaro to which an informant might contribute: en-
trapment, alibi, mistaken identity, and lack of sufficient knowledge
on the part of the accused where knowledge is an element of the
crime."'
In addition to the foregoing necessary elements, the courts have
placed a heavy burden on the accused to specify concrete reasons
52. In Rugendorf v. United States, 376 U.S. 528 (1964), the Court described the
burden as follows:
The necessity for disclosure depends upon "the particular circumstances of each
case, taking into consideration the crime'charged, the possible defense, the possi-
ble significance of the informer's testimony, and other relevant factors .... " Peti-
tioner did not develop any such criteria with reference to the merits of the case ....
Never did petitioner's counsel indicate how the informant's testimony could help
establish petitioner's innocence.
Id at 535.
53. United States v. Portomene, 221 F.2d 582 (5th Cir. 1955). Portomene was cited
by the Supreme Court in Roviaro. The fifth circuit in Portomene rejected the govern-
ment's argument that if the "refusal to disclose" ruling was erroneous, it was harmless
because the defendant testified that he thought he knew the informant's identity and
believed the informant to be Joe Vega, who had a motive to frame him. The court said:
[lit does not lie in the mouth of the government to say that, though the court er-
red by depriving the defendant of the information he sought and to which he was
entitled, and thus visited a wrong upon him, the conviction should nevertheless
stand because the amount and extent of the prejudice is not precisely shown.
Id at 584. Many subsequent fifth circuit cases have cited Portomene without
repudiating this point, so it can be argued that the fifth circuit does not require that
the informant be a stranger to the accused. However, it can be argued that Roviaro
impliedly holds that if the defendant had known the accused then the refusal to
disclose would have been harmless error. See note 29, supra.
54. United States v. D'Angiolillo, 340 F.2d 453 (2d Cir. 1965). In D'Angiolillo, it
was said: "The rule emerging from these and earlier decisions is that, where the in-
former's testimony may be relevant to the defense, the defendant is entitled to his
name, to such information as the government may have concerning his whereabouts,
and to reasonable cooperation in securing his appearances." Id. at 455. This is consis-
tent with Westen's theory of compulsory process since the court found the witness to
be available. See note 16, supra.
55. See note 53, supra.
19791 COMMENTS
56. This writer will attempt to show that unfortunately these rulings have not
always been proper.
57. 531 F.2d 783 (5th Cir. 1976).
58. The court's treatment of the informant issue is very interesting and will be
discussed in detail.
59. See Bourbois v. United States, 530 F.2d 3 (5th Cir. 1976); United States v.
Clark, 482 F.2d 103 (5th Cir. 1973).
60. 531 F.2d at 787.
61. 482 F.2d 103 (5th Cir. 1973).
62. Id. at 104.
63. Id.
64. 399 F. Supp. 430 (E.D.N.Y. 1975).
65. The New York court said:
Uncertainty arose on the prosecution's own testimony concerning the presence of
the alleged informer throughout the transaction, but that uncertainty left open
LOUISIANA LA W REVIEW [Vol. 40
not only the possibility that the informer was present throughout, but also the
possibility that, if he stood apart from the final phase of the transaction, he was
close enough to see whether anything passed from hand to hand after he stood
aside . . . . The alleged informant if present to the extent that the prosecution's
evidence indicated, would, if the police testimony was fully truthful, have been a
merely cumulative prosecution witness. But if the critical testimony of the under-
cover detective was suspect, the alleged informer's testimony could have con-
tradicted it along a half dozen imaginable paths not excluding the identity of the
seller, failure to make a "buy" (for, of course, not every approach even to a known
peddler results in a transaction; even peddlers run out of stock), refusal to deal
(whether or not petitioner was a peddler), recognition of the undercover officer as
what he was, etc.
Id. at 438-39.
66. The Clark court stated in a footnote that it had considered defendant's
argument in light of Brady v. Maryland, 373 U.S. 83 (1963), which was cited as authori-
ty for the proposition that due process is violated by suppression of evidence favorable
to the accused. However, it found that nothing in the record indicated that the in-
former possessed exculpatory information, which would tend to benefit appellant or to
bring this matter within the ambit of Brady. 482 F.2d at 104. Cf. United States v.
Davis, 487 F.2d 1249 (5th Cir. 0973).
67. 530 F.2d 3 (5th Cir. 1976).
68. 28 U.S.C. § 2255 (1949).
69. 530 F.2d at 3.
19791 COMMENTS
cepted the envelope. The defendant testified at trial that he had met
the informant through a man he had known for ten years and had
entrusted a ring to the informant to sell. The defendant further
testified that when the informant approached him in the lobby, the
informant said: "Take this and then later we will talk."
On appeal the court noted that the sole point of argument was
whether knowledge, intent, and concealment were sufficiently proven
by the government. The court concluded that except for the in-
ference which could be drawn from the first agent's testimony,
there was no evidence in the record that could support the judge's
finding of guilty knowledge. Thus, the court concluded with the
following statement:
In essence, the case boils down to whether the defendant, who
took the stand and testified subject to cross-examination, or the
unnamed and unproduced Government informant is to be believed,
for it is only the informant's suggestion to the Government's
agents that he obtained the counterfeit bills in question from
defendant which ties him to the bills. While the informant has a
qualified privilege not to testify, the Government's attempt to
make its case against Serrato without the informant's testimony
failed to prove mens rea.74
This case is not a Roviaro problem at all, although the court's
reliance on Roviaro is certainly justifiable. Although the opinion is
not clear on this point, it appears that the defendant never re-
quested the name of the informant and had instead correctly taken
exception to the government's failure to prove mens rea. Further,
the quoted passage of the court's opinion shows that the true
grounds for reversal were that defendant was convicted on hearsay
evidence and that his sixth amendment right of confrontation had
been violated."
The third category of informant cases delineated by the Fischer
court is that group of cases typified by United States v. Toombs, 7 in
which "there was a slight possibility that the defendant might
benefit from disclosure, but the government had demonstrated a
compelling need to protect its informer."" Toombs is a difficult case
74. 451 F.2d at 526, citing Roviaro v. United States, 353 U.S. 53 (1953).
75. It should be emphasized that the defendant's right of confrontation was not
violated because the name of the informant was not disclosed to him. Rather, this con-
stitutional protection was abridged because the true witness against him, which proved
a necessary element of the crime, was not produced so that defendant could confront
and cross-examine him. However, it can be argued that the case merely stands for the
proposition that the government cannot abrogate its responsibility to prove an element
of a crime, such as mens rea, by claiming the informer privilege.
76. 497 F.2d 88 (5th Cir. 1974).
77. 531 F.2d at 787.
19791 COMMENTS
and illustrates just how intricate the balancing test can be in an in-
formant case. Due to space limitations the involved details of the
testimony presented by the government and by the defense will not
be recounted in this comment. Judge Ainsworth does an excellent
job in distinguishing the factual context of this case from that of
Roviaro, provided one takes the government's version of the facts as
true. Judge Ainsworth might have been attempting to circumvent
this problem when he stated in his opinion: "Conceding, arguendo,
the unlikely possibility that the informant would have corroborated
defendant's account of the events, his testimony would have been
cumulative to that of the two defense eyewitnesses, whom the jury
78
chose to disbelieve.
In the first place it might not be so unlikely that the informant
would have corroborated the defendant's account of the events.
After all, in Roviaro, which the court painstakingly distinguished,
the informant had denied ever seeing the defendant when con-
fronted with him at the police station on the night of the alleged
transaction. In the second place, although the informant's testimony
might have been cumulative, the effect on the jury of the
informant's repudiating the government's version of the story could
have been devastating.
Another disturbing aspect of the Toombs case is the court's
analysis of the defendant's request and reasons for disclosure. As
stated earlier the burden is on the defendant to show why
disclosure is necessary.79 Regarding the defendant's request for
disclosure of the informant's identity the Toombs court said: "In his
motion for disclosure and accompanying affidavit, appellant's allega-
tions that the informant was an active participant and a material
witness to the alleged transaction were merely conjectural."80 The
fallacy of such an argument is readily apparent, for in Toombs the
informant's participation was not a product of defense counsel's "fer-
tile imagination." The defense had three witnesses, the defendant
and two others, testifying as to the informant's degree of involve-
ment. The implication from this statement by the court is that the
need for disclosure, then the government can come forward with
compelling reasons for invoking the informer privilege. A question
arises, however, concerning the situation where the defendant has
convinced the court that disclosure is essential to his defense, and
once again the government comes forward with proof that the infor-
mant's life is seriously in danger. The probable answer is that the
government should be required to discontinue its prosecution of the
defendant."
The Fischercase represents an enlightened approach to the prob-
lem at hand. On the record before it, the court was unable to deter-
mine into which category the case should be placed. Pertinent to the
informant issue, the record only showed that the informant arranged
the parties' introduction, that three meetings occurred between two
narcotics agents and the defendants for the purpose of purchasing
cocaine, and that the informant was present throughout the first
meeting at which he helped test the cocaine.
Although the court concluded that this participation was more
active and significant than that of the informant in United States v.
Davis,85 it was unable to say from this record that the informant's
participation was such that fairness to the defendant required
disclosure and production regardless of any showing the government
could make in opposition. Under such circumstances the court felt
that it could only guess as to the substance of the informant's
testimony. Further, the court noted that the record was silent about
the interests which the government might have had in resisting
disclosure and production. Consequently, the court remanded the
case to the district court so that the judge could question the infor-
mant in camera to ascertain whether his testimony might be helpful
to the defendants. At this time, the judge was also directed to ques-
tion the informant and the government concerning their interests in
avoiding disclosure and production. Finally, the record was to be
supplemented with an order applying the Roviaro balancing test to
the facts of the case.
This is a significant and welcomed departure from prior cases.
The outstanding feature of this approach is the change of emphasis
with regard to the burden that defense counsel must carry in order
to require disclosure. Thus, the appellate court refused to penalize
the defendant for failing to establish in the lower court why
disclosure and production were necessary in order to make out a
defense. In fact, the court holds that it is the district judge's respon-
sibility to ascertain the possible relevance of the informant's
86. Professor Pugh has pointed out that the United States Supreme Court
creatively dealt with the informant problem when it promulgated the Federal Rules of
Evidence. In rule 510, as promulgated, the Supreme Court provided that under certain
circumstances a trial judge can make an in camera investigation apart from both
counsel and defendant. 56 F.R.D. 183, 510 (1972). Unfortunately, Congress punted on
this and other privilege rules promulgated by the Court and chose instead to adopt a
single rule. FED. R.EVID. 501.
87. 531 F.2d at 788. The Fischer court cited two other recent fifth circuit cases as
authority for the in camera hearing in informant cases. United States v. Freund, 525
F.2d 873 (5th Cir. 1976), is not a true Roviaro problem, but does involve the protection
of confidential informants. The Freund court points out that "the United States
Supreme Court indicated that an in camera procedure was an acceptable device to aid
the trial court in its application of the Roviaro test." 525 F.2d at 877, citing Alderman
v. United States, 394 U.S. 165 (1969). United States v. Doe, 525 F.2d 878 (5th Cir.
1976), held that a defendant's sixth amendment rights to counsel and confrontation
were not violated when the district court conducted a post-trial in camera interview
with a confidential informant who was present during the narcotics transaction. The
court said:
[Iln light of [defendant's] alibi defense, the district court correctly reasoned that
disclosure would not be warranted unless the informant either could not positively
identify the [defendant] or possessed some other evidence that would tend to ex-
onerate [him]. Both the in camera interview and the test identification procedures
provided the court with precisely the sort of information upon which its ruling on
disclosure should have been based.
525 F.2d at 880. The opinion is not clear on this point but apparently the right to
counsel violation must have stemmed from the fact that defense counsel was not per-
mitted to attend the in camera hearing. The court's rejection of this argument seems
to indicate that the court does not have to permit defense counsel to be present at
such an in camera hearing in order to determine whether disclosure is necessary, but
this writer feels it should be otherwise.
19791 COMMENTS
position to affirm or deny."9 Thus, the court concluded that the trial
judge reached a satisfactory solution, especially in light of the fact
that the defendant was armed when arrested and the informant had
expressed concern for his personal safety." As with defendant's
compulsory process claim, the court noted that the judge had taken
steps to protect defendant's right to prepare his defense, but that
defendant had failed to take advantage of his opportunity to inter-
view the informant. 1 Under these circumstances, the court of ap-
peals found that the trial judge's refusal to order disclosure of the
informant's address was not reversible error.
The fifth circuit's opinion in Bower is logical, especially with
respect to the defendant's request for the informant's address. The
court correctly approves of the trial judge's solution to the conflict-
ing interests of the government and the defendant. Such a pretrial
interview can be a viable alternative to complete disclosure and pro-
duction in many cases. Bower also correctly acknowledges the defen-
dant's significant interest in disclosure in an entrapment case.
Discussion of defendant's waiver of constitutional claims by his
failure to request the pretrial interview is beyond the scope of this
paper.
Louisiana Law
The Louisiana Supreme Court has recognized an informer
privlege," although no express statutory authority exists for it. On
the question of whether the defendant can overcome the informer
privilege and learn the name of a confidential informant, the leading
case of State v. Dotson" shows that the Louisiana Supreme Court
has adopted a strict Roviaro balancing test.'
89. Id. at 503, citing United States v. Gomez-Rojas, 507 F.2d 1213 (5th Cir.), cert.
denied, 423 U.S. 826 (1975).
90. See United States v. Hansen, 569 F.2d 406, 410 (5th Cir. 1978); United States
v. Toombs, 497 F.2d at 94.
91. At this point in the opinion the court reiterated its earlier statement that had
the defendant been pleased with the results of his interrogation of the informant, then
he could have subpoenaed him for appearance at trial through the office of the United
States Attorney. In light of the foregoing this case is quite distinguishable from a
classic Roviaro problem. In the instant case the government disclosed the informant's
true identity and apparently was going to call him as a witness, until the trial judge
denied to the government the right to call him as a witness due to a violation of the
court's pretrial order.
92. E.g., State v. O'Brien, 255 La. 704, 232 So. 2d 484 (1970); State v. Freeman,
245 La. 665, 160 So. 2d 571 (1964).
93. 260 La. 471, 256 So. 2d 594 (1971), cert. denied, 409 U.S. 913 (1972).
94. Apparently the state made no claim that the informer privilege could be ab-
solute or that Roviaro merely announced an evidentiary rule binding on federal courts.
Also, defendant made no constitutional claim of entitlement to disclosure and produc-
tion.
19791 COMMENTS
107. For other interesting Louisiana cases which have been decided recently, see
State v. Diliberto, 362 So. 2d 566 (La. 1978) (trial judge's grant of motion to disclose
was premature where issue was probable cause for search); State v. Weems, 358 So. 2d
1979] COMMENTS
Conclusion
One can conclude from the foregoing analysis that there is a
strong public policy in favor of protecting the identity of confiden-
tial informants."°8 To date the United States Supreme Court has not
given specific constitutional dimensions to the right of the defendant
to disclosure of the identity of informants, although rigorous
arguments have been made in lower federal courts and state courts
that due process, the right of confrontation, or the right of com-
pulsory process requires disclosure in certain cases. At least one
federal judge has agreed that Roviaro, the leading Supreme Court
case,' 9 is grounded on due process of law."' Another federal court
has held that the compulsory process clause of the sixth amendment
requires disclosure of an informant's identity, absent compelling
state interests in maintaining his secrecy."' Commentators have
argued persuasively that once it has been determined that an infor-
mant possesses evidence which is relevant and material to the
determination of the defendant's guilt or innocence, the sixth
amendment overrides the government's informer privilege."'
However, the key to this constitutional right still lies in convinc-
ing the court that the informant may be able to give testimony
which is necessary to a fair determination of the issue of guilt or in-
nocence." 8 Such a crucial demonstration, which may be impossible
for a defendant to present in the abstract, emphasizes the necessity
of in camera hearings. As Weinstein has noted, most courts have
assumed that in following Roviaro they have had but two
choices-to order public disclosure of the informant's identity or to
deny disclosure. Consequently, the required balancing of public in-
terests with the accused's right to make out a defense often pro-
285 (La. 1978) (where defendant admitted knowing informant's name and address,
where defendant made no attempt to subpoena informant, and where judge permitted
full cross-examination concerning his background, disclosure not necessary despite in-
formant's presence at scene of crime and alleged defense of entrapment); State v.
Helmke, 350 So. 2d 1191 (La. 1977) (in prosecution for gambling offense, where infor-
mant placed monitored phone calls to accused, disclosure not necessary where state
stipulates that no evidence concerning calls will be introduced).
108. See notes 3-7, supra
109. See text at notes 27-31, supra
110. See text at notes 35-42, supra.
111. Melendez v. Superintendent, Clinton Correctional Facility, 399 F.2d 430
(E.D.N.Y. 1975). See notes 21, 25 & 65, supra.
112. See text at notes 20, 25 & 44, supra.
113. See Roviaro v. United States, 353 U.S. 53, 63 (1957) (informant's information is
"relevant and helpful to the defense of an accused, or is essential to the fair determina-
tion of a cause"); FED. R. EVID. 510(c)(2), reprinted in J. WEINSTEIN, supra note 3, at
510-11; Westen, supra note 20, at 159 ("if the evidence the defendant seeks would tend
to contradict the very elements of the charge against him").
LOUISIANA LAW REVIEW [Vol. 40
Michael D. Bewers
114. J. WEINSTEIN, supra note 3, at 510-21, citing United States v. Jackson, 384
F.2d 825, 827 (3d Cir. 1967), cert. denied, 392 U.S. 932 (1968) ("In the informer situation
the burden placed upon the trial judge is great since he must often balance conflicting
interests without being aware of what relevant information, if any, the informer
possesses.").
115. J. WEINSTEIN, supra note 3, at 510-23, citing United States v. Day, 384 F.2d
464, 470 (3d Cir. 1967) (McLaughlin, J., concurring) ("I consider it clear that an in
camera proceeding is warranted for the reason that the power to rule on the question
of disclosure is vested by Roviaro solely within the discretion of the trial judge, who
must be allowed to rely on the investigative power at his disposal if he is to render an
enlightened and just decision.").
116. See notes 9, 20 & 44, supra.