State v. Ricky Sessoms, ? N.J. Super. ?, 2010 N.J. Super. LEXIS 82 (May 17, 2010) – Order requiring the State to “confirm or deny” the identity of a confidential informant reversed. “The order issued as a result of defendant’s submission of an affidavit by A.M., who claimed to be the informant, in support of the motion for disclosure….
In granting defendant’s motion for disclosure, the court correctly centered its analysis on N.J.R.E. 516, which authorizes the admission of evidence as to the identity of a confidential informant when ‘the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed ….” The court reasoned that because the identity of the informant had been disclosed to defendant, the State was required to ‘confirm or deny’ it….
The essential question in this case, however, is whether A.M.’s affidavit actually constitutes disclosure within the meaning of the rule such that the State must either confirm or deny his identity…. Because the privilege belongs to the State and not the informant, we cannot agree with the motion judge that a ‘disclosure’ has occurred within the meaning of the rule. Even if A.M.’s affidavit is entirely legitimate and was offered spontaneously, the disclosure was neither made by the State nor made as a result of circumstances beyond defendant’s control. It was made by the alleged informant himself, no doubt at defendant’s urging.
Theoretically, there is no longer a need to protect A.M.’s physical safety. But A.M.’s revelation does not advance the other public policy objective behind the privilege, which is to encourage the flow of information to law enforcement about crime…. [Confirmation] would vitiate the privilege. It would place those suspected of being confidential informants in the unfortunate position of being pressured to come forward. Defendants would have a reason to tamper with potential witnesses as well as a mechanism by which they could force the State’s hand to compel disclosure.”