How Can You Find Out If Someone Is a Police Informant ?
The privilege against disclosure of information about one who assists law enforcement officers in the investigation of crimes is set out in Texas Rule of Evidence 508. Subsection (a) of the rule establishes the privilege and subsection (c) provides three exceptions to the privilege.
Relevant here is the second exception which reads:
If it appears from the evidence . . . that an informer may be able to give testimony necessary to a fair determination of a material issue . . . on guilt or innocence in a criminal case, and the public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. . . . If the court finds that there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose the informer's identity, the court . . . shall, on motion of the defendant, and may, on the court's own motion, dismiss the charges as to which the testimony would relate. Tex. R. Evid. 508(c)(2).
This rule creates a four-step process for resolving prosecution claims of privilege for informers; namely:
(1) the evidence must show that the informer may be able to give necessary evidence;
(2) the prosecution must invoke the privilege;
(3) the trial court must permit the prosecution to show in camera whether the witness can give the testimony;
(4) if the court determines the informer can give the testimony, and the prosecution does not disclose their identity, the charge must be dismissed.
In Anderson v. State, 817 S.W.2d 69 (Tex.Crim.App. 1991), the court addressed the effect of Rule 508(c)(2). In doing so, it noted the common law standard formerly followed in Texas was based on Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957), which held that an informant's identity must be disclosed if they participated in the offense, were present at the time of the offense or arrest, or were otherwise shown to be a material witness to the transaction. 817 S.W.2d at 71.
In its explication, the Anderson court held the circumstances under which disclosure is required under Rule 508(c)(2) are broader than under the former doctrine. Anderson, 817 S.W.2d at 71-72 (citing Bodin v. State, 807 S.W.2d 313, 317 (Tex.Crim.App. 1991)).
The court went on to hold that "whenever it is shown that an informant was an eyewitness to an alleged offense then certainly that informant can in fact give testimony 'necessary to a fair determination of the issues of guilt or innocence.'" Anderson, 817 S.W.2d at 72.
In Loving v. State, 882 S.W.2d 42 (Tex.App.-- Houston [1st Dist.] 1994, no pet.), the defense satisfied the first step of Rule 508(c)(2) by making a threshold showing that the informant may be able to supply necessary testimony. Id. at 46.
After the prosecution's assertion of privilege, the trial court held a hearing, but did not take any in camera evidence. After the hearing, the trial court refused to require disclosure of the informant's identity. Id.
En route to holding the trial court erred in failing to require disclosure of the informant's identity, the appellate court wrote, "appellant made a threshold showing that the confidential informant may provide testimony necessary to a full determination of his guilt.
There is no evidence in the record from which the trial court could have determined whether in fact the informant could supply that testimony." Loving, 882 S.W.2d at 46.
In determining whether the error required reversal, the appellate court concluded, "by the withholding of the name of the confidential informant, appellant was deprived of the opportunity to examine a potentially exculpatory witness" and reversal was required. Id.