Behind Door #3

By Brett Purtzer; Jan 1999

     In our last issue I discussed the recent Tenth Circuit decision in United States v. Singleton, which is currently awaiting a decision after the en banc argument. As set forth within 18 USC § 201(2), the law prohibits anything of value being promised to a witness in exchange for that witness’s testimony.

     In addition to those circumstances where we know who the informant is, there are circumstances where we don’t know who the informant is, but we would like to. The following cases provide some guidance when attempting to flush out an informant’s identity in order to learn more about these slippery individuals.

     The government has a limited privilege to refuse to disclose the identity of informants who provide information of criminal violations.  State v. Petrina, 73 Wn.App. 779, 871 P.2d 637 (1994).  However, a defendant's request for disclosure raises constitutional issues of fundamental fairness and due process.  State v. Petrina, supra, citing United States v. Raddatz, 447 U.S. 667, 679, 100 S.Ct. 2406, 2414, 65 L.Ed.2d 424 (1980).  The fundamental fairness requirements of fairness limit the government's privilege.  State v. Petrina, supra.  In State v. Harris, 91 Wn.2d 145, 152, 588 P.2d 720 (1978), the Washington State Supreme Court held:

     "When disclosure of an informant's identity... is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way."

Harris, 91 Wn.2d at 149.

     If it is clear to the trial court that either prong (relevant and helpful to the defense or essential to a fair determination) has been established, failure to disclose would prejudice the defendant even if the trial court believes the testimony would not benefit the accused.  State v. Harris, supra.  The Supreme Court stated:

        "It does not matter whether the testimony of the informer would support the accused or not... In such a situation, the accused decides how to use or whether to use the disclosed information... The trial court cannot substitute its judgment for the defendants as to the benefit of the testimony, or for the jury as to reliability of the testimony."

Harris, 91 Wn.2d at 149-50.

     In addition, a defendant has a Sixth Amendment right to compel attendance of witnesses who could provide material aid to his defense.  State v. Petrina, supra.  If a defendant establishes a colorable need for the person to be summoned, then the person is a material witness whose identity the state must disclose to allow the defendant to compel attendance.  State v. Petrina, supra.  A defendant can overcome the government's limited privilege as to non-disclosure of the informant's identity by showing that the informant is a material witness as to guilt or innocence.  State v. Petrina, supra.

     In Petrina, a confidential informant related information that the informant had observed approximately one pound of marijuana and other drug paraphernalia in Mr. Petrina's residence.  The informant also alleged that Mr. Petrina's son normally stores his marijuana in bulk at his father's residence.  Based on this information a judge issued a warrant to search the residence of Mr. Petrina.  The police executed and searched the residence.  They discovered a small quantity of marijuana as well as a scale and other drug paraphernalia.  The state charged Mr. Petrina with possession of marijuana with intent to deliver.  Mr. Petrina claimed a lack of knowledge of the marijuana and moved for disclosure of the identity of the confidential informant.  The state opposed the motion claiming disclosure would not help the defense, and that the state did not intend to present the informant's information at trial.  The state requested, in the alternative, that the court examine the informant in an in-camera hearing before making its decision regarding disclosure.  The trial court concluded that the informant's testimony was essential to the determination of Mr. Petrina's prosecution.  The court declined to hold and in-camera hearing and ordered disclosure.  When the state refused to comply with the disclosure order, the trial court dismissed the charges.  The state appealed.  The Court of Appeals affirmed the dismissal.  The Court of Appeals state that:

      "When disclosure of an informant's identity is relevant and helpful to the defense of an accused, or is essential to a fair determination of the cause, the limited privilege of disclosure must give way." State v. Petrina, supra.

     As you can see from Petrina, supra, motions to disclose informants can result in excellent results for your clients. Because the judge, when issuing a search warrant, often accepts the affiant’s representations at face value, the informant’s information is rarely challenged. As such, once you get into your investigation this motion should be made to not only learn the informant’s identity but also what promises and other inducements were offered in exchange for the information provided.

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