Only in some cases. California lets the government keep a confidential informant’s identity secret, but that privilege gives way when the informant is also a material witness on the question of guilt and keeping the name secret could deprive you of a fair trial. If your lawyer demands disclosure on that ground, the court must hold a hearing to decide it.
The privilege, and who it actually covers
Under Evidence Code section 1041, “a public entity has a privilege to refuse to disclose the identity of a person who has furnished information” about a claimed violation of law. Someone the agency authorizes must claim it, and it applies only if a statute forbids disclosure or the need to keep the informant’s identity confidential outweighs the need for disclosure in the interest of justice. It also reaches only information given in confidence to a law enforcement officer, to a representative of the agency that enforces the law involved, or to someone for passing along to either of them. Information that was not given in confidence falls outside the privilege.
Mere informer versus material witness
The California Supreme Court explained the dividing line in People v. Garcia (1967) 67 Cal.2d 830. A “mere informer” only points the finger of suspicion at someone; that person’s identity is ordinarily not necessary to the defense, and the privilege applies. Things change when the informant is more than that. An informant who could supply material evidence about guilt may have information useful to the defense. Garcia reversed the conviction after disclosure was refused. The current Evidence Code section 1042(d), discussed below, provides the hearing procedure and the court’s possible remedies, including disclosure, striking testimony, or dismissal after its fair-trial finding. Garcia was decided under an older statute, but the court also concluded that the Evidence Code privilege must yield in the same situation.
The informant does not have to have taken part in the crime or seen it. In Garcia, the two informants described in a search warrant affidavit had reported buying drugs from the people the warrant named, at their apartment and at a bar. They neither took part in nor saw Garcia’s alleged possession, but they might have been able to testify about who lived there and where the drugs were kept, which fit his claim that he was only a visitor. The court held they were material witnesses and reversed his conviction because disclosure was refused.
The defense carries the burden of showing materiality, but under Garcia it is met by showing a reasonable possibility that the informant could give evidence on the issue of guilt that might exonerate the defendant. The defense does not have to prove in advance exactly what the informant would say.
If a search warrant was involved
A warrant does not, by itself, entitle you to the informant’s name. Under Evidence Code section 1042(b), when a search was made under a warrant valid on its face, the prosecution does not have to reveal the informant’s identity to establish that the search was legal or that the evidence it produced is admissible. Challenging whether the warrant affidavit itself was truthful is a separate track from a disclosure demand; our page on challenging a search warrant’s validity covers that analysis. As Garcia shows, though, an informant described in a warrant affidavit can still be a material witness on guilt.
Separately, under section 1042(c), information from a confidential informant who is not a material witness on guilt or innocence can be used to show reasonable cause for an arrest or search without naming the informant, if the judge is satisfied, from evidence heard in open court outside the jury’s presence, that the informant was reliable, and decides in the judge’s discretion not to require disclosure.
How a disclosure demand works
To get past the privilege on materiality grounds, the defense demands disclosure under Evidence Code section 1042(d) on the ground that the informant is a material witness on guilt. The court then holds a hearing, outside the jury’s presence, at which all parties may present evidence. If the privilege is claimed at that hearing, or an authorized person refuses to answer a question because the answer would tend to reveal the informant’s identity, the prosecutor may ask for a further hearing in camera. That session is held outside the presence of the defendant and defense counsel, and the prosecution may offer evidence that reveals or tends to reveal the informant’s identity to help the judge decide. A reporter is present, and the transcript and any physical evidence are sealed; only a court may see them.
The court will not order disclosure, strike the testimony of the witness who invokes the privilege, or dismiss the case unless, based on the evidence from both hearings, it concludes “there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.”
What decides the disclosure question
Because the outcome turns on whether the informant is a mere tipster or a material witness, the useful facts are concrete: what the informant claims to have seen, done, or arranged; whether the informant took part in or witnessed the charged transaction; and whether the informant could know facts that support your defense, such as who lived at a searched location or who controlled the drugs. The closer the informant’s possible knowledge sits to the disputed facts of guilt, rather than to how police got involved, the stronger the case for disclosure. Do not try to identify, locate, or contact the informant yourself; this is a motion for your attorney to bring and argue at the hearing the statute provides.
If a confidential informant’s tip led to your drug charge, the Law Offices of David S. Chesley can evaluate whether the informant was a mere tipster or a material witness whose identity you may be entitled to learn. Call (800) 755-5174.