State v. Flowers

• Decision Date: 16 April 1973
• Citation: 316 A.2d 564
• Parties: The STATE of Delaware v. Barbara FLOWERS.
• Court: Delaware Superior Court

Page 564

316 A.2d 564

The STATE of Delaware v. Barbara FLOWERS.

Superior Court of Delaware, New Castle County.

April 16, 1973.

Opinion on defendant's motion for judgment of acquittal or new trial.

H. Murray Sawyer, Jr., Deputy Atty. Gen., Wilmington, for the State.

Louis L. Redding, Asst. Public , Wilmington, for defendant.

QUILLEN, Judge:

The case at bar presents the difficult question of the accused's right to, and the prosecution's privilege against, disclosure of the identity of an informer. See Annot. 76 A.L.R.2d 262.

In this case, the State presented evidence which showed that an unnamed informer introduced a police officer to the defendant and the defendant sold the police officer heroin. The defense was alibi. Disclosure of the identity of the informer was not required at trial. Defendant was convicted by a jury. ¹ Defendant has, among other things, moved for a new trial because of the Court's ruling on disclosure of the identity of the informer.

There is almost a natural inclination on the part of lawyers and judges to require disclosure of the identity of anyone that trial testimony indicates was present at the time of the alleged criminal act. The person is a witness and, at first blush, that would seem to end the matter. Moreover, required disclosure would simplify the trial of the case and make the Court's duty less burdensome.

But there are compelling reasons to restrain the lawyer inclination and to examine in some detail the problem on a case by case basis.

Unfortunately, the term informer as used today is generally a far cry from a reference to the good citizen performing his duty. But it is impossible to minimize the value of informers. Today the emphasis is on drug law enforcement and the absolutely essential role of informers and undercover policemen in drug law enforcement is well known. While it might be debated whether this role has in some instances at the local level been over exerted in the case of marijuana and teen age problems, there can be little debate about proper public policy in the case of hard drugs such as heroin. No legitimate concern over expanding police power by the use of informers can overbalance the illegal, profit-making, addict-creating and people-killing evil of heroin traffic. Persons who participate in such traffic from the helpless addict to the financial kingpin are a public menace and their apprehension, conviction and confinement are a public necessity. If those who administer the law fail to judge with full recognition of the highly dangerous factual context, they fail to recognize the very function of law and justice.

The problem of the identity of informers is not new. As a leading evidence treatise states:

'* * *. A genuine privilege, * * *, must be recognized for the Identity of persons supplying the government with information concerning the commission of crimes. Communications of this kind ought to receive encouragement. They are discouraged if the informer's identity is disclosed. Whether an informer is motivated by good citizenship, promise of leniency or prospect of pecuniary reward, he will usually condition his cooperation on an assurance of anonymity--to protect himself and his family from harm, to preclude adverse social reactions and to avoid the risk of defamation or malicious prosecution actions against him. The government also has an interest in nondisclosure of the identity of its informers. Law enforcement officers often depend upon professional informers to furnish them with a flow of information about criminal activities. Revelation of the dual role played by such persons ends their usefulness to the government and discourages others from entering into a like relationship.

'That the government has this privilege is well established, and its soundness cannot be questioned.'

8 Wigmore on Evidence (McNaughton rev. 1961) § 2374, pp. 761--762.

In the leading New Jersey case on this subject, Chief Justice Weintraub wrote as follows:

'The privilege exists to secure a flow of vital information which can be had only upon a confidential basis. Not all such information comes from people of high motivation. The police must have the aid of men of lesser quality who respond to selfish inducements, including money. These men are needed for what they know, but also for what they can learn because of their associations. This is especially true with respect to crimes of a consensual nature as to which there is little likelihood that a victim will complain. See Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312, 316, n. 6 (1966), and McCray v. State of Illinois, 386 U.S. 300, 87S.Ct. 1056, 18 L.Ed.2d 62, 71 (1967). The informer, paid or not, is subject to risks of retaliation which a regular member of a police force need not fear and hence, whether paid or not, he comes within the protection of the privilege.'

State v. Oliver, 50 N.J. 39, 231 A.2d 805, 807 (1967).

It should also be noted, as Wigmore has, that the privilege of nondisclosure of the identity of an informer qualifies under the general standards for all privileged communications:

'(1) The communications must originate in a Confidence that they will not be disclosed.

'(2) This element of Confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

'(3) The Relation must be one which in the opinion of the community ought to be sedulously Fostered.

'(4) The Injury that would inure to the relation by the disclosure of the communications must be Greater than the benefit thereby gained for the correct disposal of litigation.'

Wigmore, Supra, § 2285, p. 527.

Wigmore has also stated four limitations on the privilege:

'(1) The privilege applies only to the identity of the informer, and not to his communications as such.'

'(2) If the identity of the informer is Admitted or known, then there is no reason for pretended concealment of his identity, and the privilege of secrecy would be merely an artificial obstacle to proof.'

'(3) The privilege applies to communications to such officers only as have a Responsibility or duty to investigate or to prevent public wrongs, and not to officials in general.'

'(4) Even where the privilege is strictly applicable, the Trial court may compel disclosure if it appears necessary in order to avoid the risk of false testimony or in order to secure useful testimony.'

It is, of course, the last limitation noted which causes most of the difficulty and most of the litigation. In the leading case of Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 629, 1 L.Ed.2d 639 (1957), a federal evidentiary ruling not grounded on Constitutional rights, Justice Burton wrote:

'We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous...