Rule 510  Identity of informer.  (a) 
Rule of privilege.  The government or a state or subdivision thereof has a
privilege to refuse to disclose the identity of a person who has furnished
information relating to or assisting in an investigation of a possible
violation of law to a law enforcement officer or member of a legislative
committee or its staff conducting an investigation.



(b)  Who may claim.  The privilege may be
claimed by an appropriate representative of the government, regardless of
whether the information was furnished to an officer of the government or of a
state or subdivision thereof.  The privilege may be claimed by an appropriate
representative of a state or subdivision if the information was furnished to an
officer thereof, except that in criminal cases the privilege shall not be
allowed if the government objects.



(c)  Exceptions.



(1)  Voluntary disclosure; informer a witness.  No
privilege exists under this rule if the identity of the informer or the
informer's interest in the subject matter of the informer's communication has
been disclosed to those who would have cause to resent the communication by a
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 merits.  If it appears from the
evidence in the case or from other showing by a party that an informer may be
able to give testimony necessary to a fair determination of the issue of guilt
or innocence in a criminal case or of a material issue on the merits in a civil
case to which the government is a party, and the government invokes the
privilege, the judge shall give the government an opportunity to show in camera
facts relevant to determining whether the informer can, in fact, supply that
testimony.  The showing will ordinarily be in the form of affidavits, but the
judge may direct that testimony be taken if the judge finds that the matter
cannot be resolved satisfactorily upon affidavit.  If the judge finds that
there is a reasonable probability that the informer can give the testimony, and
the government elects not to disclose the informer's identity, the judge on
motion of the defendant in a criminal case shall dismiss the charges to which
the testimony would relate, and the judge may do so on the judge's own motion. 
In civil cases, the judge may make any order that justice requires.  Evidence
submitted to the judge shall be sealed and preserved to be made available to
the appellate court in the event of an appeal, and the contents shall not
otherwise be revealed without consent of the government.  All counsel and
parties shall be permitted to be present at every stage of proceedings under
this paragraph except a showing in camera, at which no counsel or party shall
be permitted to be present.



(3)  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 judge is not satisfied that the information was
received from an informer reasonably believed to be reliable or credible, the
judge may require the identity of the informer to be disclosed.  The judge
shall, on request of the government, direct that the disclosure be made in
camera.  All counsel and parties concerned with the issue of legality shall be
permitted to be present at every stage of proceedings under this paragraph
except a disclosure in camera, at which no counsel or party shall be permitted
to be present.  If disclosure of the identity of the informer is made in
camera, the record thereof shall be sealed and preserved to be made available
to the appellate court in the event of an appeal, and the contents shall not
otherwise be revealed without consent of the government. [L 1980, c 164, pt of
§1; gen ch 1985]



 



RULE 510 COMMENTARY



 



  This rule is identical with the U.S. Supreme Court
proposal for Rule 510, see Rules of Evidence for U.S. Courts and Magistrates as
promulgated by the U.S. Supreme Court, 28 App. U.S. Code Service, App. 6
(1975).  The original Advisory Committee's Note says:  "The rule recognizes
the use of informers as an important aspect of law enforcement, whether the
informer is a citizen who steps forward with information or a paid undercover
agent.  In either event, the basic importance of anonymity in the effective use
of informers is apparent ... and the privilege of withholding their identity
was well established at common law."



  The intent of the rule is to balance the necessity for
effective law enforcement machinery and the requirement of constitutional
safeguards for the defendant.  The rule restates existing law.  In McCray v.
Illinois, 386 U.S. 300 (1967), the court held that no constitutional
requirement dictated disclosure of the identity of an informant for the sole
purpose of challenging a finding of probable cause for issuance of a search or
arrest warrant.  See also United States v. Harris, 403 U.S. 573 (1971).



  The Hawaii Supreme Court has ruled similarly.  In State v.
Delaney, 58 H. 19, 24, 563 P.2d 990, 994 (1977), the court held:
"[N]either the federal nor state constitutions dictate disclosure of an
informer's identity where the sole purpose is to challenge the finding of
probable cause.  A trial court may, in its discretion, require disclosure if it
believes that the officer's testimony [regarding the informer] is inaccurate or
untruthful."  Relying on McCray v. Illinois, supra, and the previous
decision in State v. Texeira, 50 H. 138, 433 P.2d 593 (1967), the Delaney court
also held that the trial court properly disallowed questions that might
indirectly disclose the informer's identity.



  Subsection (c)(2) of this rule deals with the situation where
the informant can supply testimony relevant to the merits of a criminal or
civil case.  In this situation disclosure is ordinarily required, see Roviaro
v. United States, 353 U.S. 53 (1957), cf. Smith v. Illinois, 390 U.S. 129
(1968).



 



Case Notes



 



  In camera hearing is mandatory prior to ordering disclosure
of confidential informant's identity or ordering dismissal of indictment.  68
H. 653, 729 P.2d 385.



  Where confidential informer was not going to be called to
testify at trial as information informer provided was not the basis for any of
the offenses charged against defendant, informer did not actively participate
in any of offenses charged, and proof of defendant's guilt depended on
circumstances at time warrant was executed and not on any information supplied
by informer, subsection (c)(2) exception requiring disclosure of informant did
not apply.  88 H. 396, 967 P.2d 228.



  Where defendant filed motion for disclosure of identity of
confidential informant, arguing that informant would be able to give testimony
necessary to a fair determination of defendant's guilt and that the subsection
(c)(2) exception therefore applied, trial court erred by presuming informer privilege
applied and not determining whether an exception to the privilege applied.  88
H. 433, 967 P.2d 265.



  Prior to granting the motion to suppress evidence, the
circuit court should have reviewed, in camera, pursuant to subsection (c)(3),
the sealed search warrant affidavit of detective that was the basis of the
district court judge's determination of probable cause for issuance of the
search warrant.  103 H. 191 (App.), 80 P.3d 1012.



  Where trial court judge was satisfied that information
received by officer from confidential informant was "reasonably believed
to be reliable or credible", and judge did not believe that officer's
testimony regarding confidential informant was "inaccurate or
untruthful", judge did not err in not requiring disclosure of confidential
informant's identity "for the sole purpose of challenging the finding of
probable cause" for the issuance of a search warrant.  108 H. 361 (App.),
120 P.3d 260.



  Discussed:  88 H. 363, 966 P.2d 1089.