The Commonwealth has a privilege not to disclose the identity of an informant. Commonwealth v. Douzanis, 384 Mass. 434, 441 (1981); Commonwealth v. Nelson, 26 Mass. App. Ct. 794, 797 (1989). This privilege is not absolute, however, and must "give way" in certain situations.
According to the judge's findings, for some reason, Luna appears not to have been advised of that order until September 1. The judge concluded that Luna had obstructed the ordered disclosure of John. He ruled that the Commonwealth's failure to disclose the identity of John and to produce him "was due to deliberate and egregious inaction by the Commonwealth" and "resulted in irremediable harm to [the defendant]." He said that the Commonwealth had not proposed a measure less drastic than dismissal of the indictments as a cure for its prejudicial misconduct (see Commonwealth v. Nelson, 26 Mass. App. Ct. 794, 799-800 [1989]) and, therefore, he dismissed the indictments. The Commonwealth's motion for reconsideration.
"Where the disclosure of a [confidential] informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the [government's] privilege [against disclosure] must give way." Commonwealth v. Nelson, 26 Mass. App. Ct. 794, 797 (1989), quoting from Rovario v. United States, 353 U.S. 53, 60-61 (1957). However, "the government is not required to disclose the identity of an informant who is . . . not an active participant in the offense charged."
In general, at trial, an informant's identity must be disclosed "[w]here [such] disclosure . . . is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause. . . ." Commonwealth v. Nelson, 26 Mass. App. Ct. 794, 797 (1989), quoting from Roviaro v. United States, 353 U.S. at 60-61. Here, the defendant was charged with a violation of G.L.c. 94C, ยง 32E( b)(1).
In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.Commonwealth v. Nelson, 26 Mass. App. Ct. 794, 797 (1989), quoting Rosario, 353 U.S. at 60-61). Here, the Defendant seeks to obtain the identity of CI primarily because of one incorrect fact CI relayed to the police.