Rule 505. Government Informer.

 

(a)   Definitions.

 

(1)   "Government" means the government of the United States, of any state, or of any subdivision of any state.

 

(2)   "Informer" means any person who has furnished information to a law enforcement officer relating to or assisting in an investigation of a possible violation of law.

 

(3)   "Law enforcement officer" includes

 

          (A)  peace officers;

 

          (B)   prosecutors;

 

          (C)   members of a legislative committee or its staff conducting an investigation; and

 

          (D)   members of a regulatory agency or its staff conducting an investigation.

 

(b)   Statement of the Privilege. The government has a privilege to refuse to disclose the identity of an informer.

 

(c)   Who May Claim the Privilege. The privilege may be claimed by counsel for the government or in the absence of counsel by another appropriate representative. The privilege may be claimed regardless of whether the information was furnished to an officer of the government claiming the privilege.

 

(d)   Exceptions: No privilege exists under paragraph (b) in the following circumstances:

 

(1)   Voluntary Disclosure. 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.

 

(2)   Informer as Witness. The informer appears as a witness for the government.

 

(e)   Testimony on Merits.

 

(1)   In General. If it appears from the evidence in the case or from another 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 of a civil case, whether or not the government is a party, and the government invokes a privilege, the judge may give the government an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply the testimony. The judge may make such orders regarding the procedures to be followed as are consistent with the spirit and purpose of this rule.

 

(2)   Effect of Invoking Privilege. If the judge finds there is 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. The judge may dismiss the charges on the judge's own motion. In a civil case, the judge may make any order that justice requires.

 

(3)   Record for Appeal. Evidence submitted to the judge may 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.

 

(4)   Right to be Present. All counsel and parties shall be permitted to be present at every stage of the proceedings under this subparagraph, except a showing in camera at which no counsel or party shall be permitted to be present.

 

(f)       Legality of Obtained Evidence.

 

(1)   Requirements for Disclosure. The judge may require the disclosure of the identity of an informer if

 

(A)   information from the informer is relied upon to establish the legality of the means by which evidence was obtained; and

 

(B)   the party attacking the legality of obtaining the evidence makes a substantial preliminary showing that the law enforcement officer intentionally, knowingly or with reckless disregard for truth falsely swore that the information was received from an informer reasonably believed to be reliable or credible and that probable cause does not exist absent the information furnished by the informer.

 

(2)   Process of Disclosure. The judge shall, at the 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 the proceeding under this subparagraph, except at a disclosure in camera, at which no counsel or parties 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.

 

 

2011 Advisory Committee Note. – The language of this rule has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

 

ADVISORY COMMITTEE NOTE

 

Rule 505 incorporates the concept reflected in Roviaro v. United States, 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623 (1957), that the government has a "privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law." The Utah Supreme Court adopted the Roviaro approach in State v. Forshee, 611 P.2d 1222 (Utah 1980).

 

Subparagraph (b) makes it clear that it is the government which holds the privilege rather than the informer, the witness, or the law enforcement officer. This is so even though the earlier Rule 36, Utah Rules of Evidence, (1971) was couched in language that suggested that it was the witness' privilege.

 

Subparagraph (c) allows the privilege to be claimed by counsel for the government or, in the absence of counsel, allows the court to determine who is "another appropriate representative" of the government for the purposes of claiming the privilege. Subparagraph (d) makes it clear that the privilege is lost if (1) the informer appears as a witness for the government, (2) the informer discloses his or her identity to the party opposed to the privilege, or (3) the government discloses the informer's identity to the party opposed to the privilege.

 

Subparagraph (d)(1) sets forth the test to be applied by the court in determining whether to allow the privilege or to require the government to elect to disclose the identity of the informer or to dismiss, in a criminal case. The rule contemplates discretion in the court to hold in camera hearings to determine whether the test is met and to seal and preserve any information disclosed in such hearings, for appellate review.

 

Subparagraph (d)(2) provides procedure in conformity with Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), to be followed in a motion to suppress or similar proceeding where a party opposed to the privilege wishes to learn the identity of a confidential informant in order to attack the probable cause upon which the search was based.