Alaska Comm. R. Evid. 509

As amended through December 18, 2024

Rule 509 - Identity of Informer

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. McCormick (2d ed.) § 111; 8 Wigmore § 2374.

(a)Rule of Privilege. The public interest in law enforcement requires that the privilege be that of the government rather than that of the witness. The rule blankets in as an informer anyone who tells a law enforcement officer about a violation of law without regard to whether the officer is one charged with enforcing the particular law. The Rule also applies to disclosures to legislative investigating committees and their staffs, and is sufficiently broad to include continuing investigations.

Although the tradition of protecting the identity of informers has evolved in an essentially criminal setting, noncriminal law enforcement situations involving possibilities of reprisal against informers fall within the purview of the considerations out of which the privilege originated.

Only identity is privileged; communications are not included except to the extent that disclosure would operate also to disclose the informer's identity. The common law was to the same effect, 8 Wigmore § 2374.

The rule does not deal with the question of when access to presentence reports made under Alaska Rule of Criminal Procedure 32(c) should be denied an accused.

(b)Who May Claim. The privilege may be claimed only by the public entity to which the information was furnished by the informer. Thus, a state representative may not claim this privilege if the informer has dealt solely with federal officers. The informant depends for protection upon the government with which he deals directly; if the government refuses to protect him, no other government can safeguard his identity. In situations of joint enforcement by different public entities, all of those that dealt directly with the informant may claim the informer's privilege to protect their information source.

Normally the "appropriate representative" to make the claim will be government counsel. However, it is possible that disclosure of the informer's identity will be sought in proceedings to which the government entity with the power to claim a privilege is not a party. Under these circumstances effective implementation of the privilege requires that other representatives be considered "appropriate."

(c)Exceptions. This section deals with situations in which the informer privilege either does not apply or is curtailed.

(1) Voluntary Disclosure -- Informer a Witness. If the identity of the informer is disclosed, nothing further is to be gained from efforts to suppress it. Disclosure may be direct, or the same practical effect may result from action revealing the informer's interest in the subject matter. While allowing the privilege in effect to be waived by one not its holder, i.e., the informer himself, is something of a novelty in the law of privilege, if the informer chooses to reveal his identity further efforts to suppress it are scarcely feasible. See 8 Wigmore §2274(2).

The exception is limited to disclosure to "those who would have cause to resent the communication," in the language of Roviaro v. United States, 353 U.S. 53, 60, 1 L.Ed.2d 639, 644645 (1957), since the disclosure otherwise, e.g., to another law enforcement agency, is not calculated to undercut the objects of the privilege.

If the informer becomes a witness for the government, the interests of justice in disclosing his status as a source of bias or possible support are believed to outweigh any remnant of interest in nondisclosure which then remains. The purpose of the limitation to witnesses for the government is to avoid the possibility of the defendant's calling persons as witnesses as a means of discovering whether they are informers.

(2) and (3) Testimony on Merits -- Legality of Obtaining Evidence. This exception and the following one are drafted to accomplish the same things that the United States Supreme Court hoped to accomplish when it approved proposed federal rule 510. But language of the proposed Federal Rule was heavily criticized by the Committee on the Rules appointed by the Alaska Supreme Court and by various persons contacted for comments by the Committee. Thus, the problem areas, this exception and the next, have been completely reworked.

Both exceptions provide that an initial opportunity to be heard on a claim of privilege will be granted the parties in civil and criminal cases, and that this opportunity will be with counsel present. There is a point under both exceptions at which the trial judge considers a submission by the government outside the presence of the parties and their counsel. The idea of the exceptions is to provide judicial screening of privilege claims without destroying the utility of the privilege.

Both exceptions specify the procedures to be followed by the trial judge, the standards to be used in judging the privilege claims, and the manner in which the record is to be preserved for appeal.

The informer privilege, it was held by the leading case, may not be used in a criminal prosecution to suppress the identity of a witness when the public interest in protecting the flow of information is outweighed by the individual's right to prepare his defense. Roviaro v. United States, supra. The Rule extends this balancing to include civil as well as criminal cases and phrases it in terms of a reasonable possibility that the 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. Once the privilege is invoked a procedure is provided for determining whether the informer can in fact supply testimony of such nature as to require disclosure of his identity, thus avoiding a "judicial guessing game" on the question. An investigation in camera is calculated to accommodate the conflicting interests involved. The rule also spells out specifically the consequences of a successful claim of privilege in a criminal case when the informant has information that might reasonably help the defendant on the merits. The wider range of possible harm to the non-government party demands more flexibility in criminal cases when the informant has nothing to add on the merits and in civil cases. Cf. Alaska R. Civ. P. 37. It should be noted that exception (3) does not speak of a remedy for nondisclosure, since the remedy is obvious; i.e., granting the motion to suppress the evidence.

Obviously, the defendant will always have an argument that it is impossible for the trial judge to foresee all "reasonable possibilities" that an informant can provide testimony helpful to the defense. Cf., Alderman v. United States, 394 U.S. 165, 22 L.Ed.2d 176 (1969). But acceptance of this argument would mean that the identity of many informants who would offer no help to the defense would be revealed to insure that those few who might be helpful do not go undetected. The counterargument begins with the premise underlying the informer's privilege, which is that a grave danger may exist when an informant is identified. This danger requires that many informants who might face no real danger be protected to insure that those actually in danger are protected, and it suggests that the defendant should bear a burden of showing that an informant would be helpful to the defense before identity is revealed. While the rule rejects both arguments it errs on the side of the defendant by providing that reasonable doubts as to the utility to the defense of an informant's testimony be decided in favor of exposing the informant.See United States v. Jackson, 442 F.2d 975 (6th Cir. 1970); United States v. Lloyd, 400 F.2d 414 (6th Cir. 1968). Since the in camera procedure takes place after some showing is made that an informant might be able to supply testimony relating to the merits, it is to be expected that trial judges will require the government to show by affidavit or otherwise exactly what the informant knows about the case.

Although Rule 509 extends to all civil and criminal cases, there is no reason to suppose that the government will attempt to invoke the privilege improperly in circumstances where an informant is not threatened by exposure. The rule recognizes that it is the informant's perception of danger that often leads the government to protect identity. To assure cooperation, the government reasonably may assuage unreasonable fears as long as it obtains no advantage in litigation in doing so. Moreover, it will be to the government's advantage in many cases to bring forth all witnesses, including informants, who have favorable testimony to offer, since this maximizes the government's chances of prevailing.

One of the acute conflicts between the interest of the public in nondisclosure and the avoidance of unfairness to the accused as a result of nondisclosure arises when information from an informer is relied upon to legitimate a search and seizure by furnishing probable cause for an arrest without a warrant or for the issuance of a warrant for arrest or search.

The Supreme Court has held that an informant's identity need not be revealed if the only information the informant can supply relates to probable cause for an arrest. McCray v. Illinois, 386 U.S. 300, 18 L.Ed.2d 62 (1967). This Rule recognizes the wisdom of compelling disclosure to the court when the government's proof of the circumstances under which evidence was obtained fails to satisfy the court that the government's conduct conformed to law. In light of the policy of the rule to protect an informant who has "fingered" a defendant, the rule provides for disclosure in camera to accommodate the conflicting interests. The limited disclosure to the judge avoids any significant impairment of secrecy, while affording the accused a substantial measure of protection against arbitrary police action.

Government counsel should bear in mind that the duty to disclose exculpatory evidence to a criminal defendant is not affected by this Rule.

Alaska Comm. R. Evid. 509