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Rule 505. Government Informer.

 

(a)   Definitions.

 

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

 

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

 

(3)   "Lawenforcement officer" includes

 

          (A)  peaceofficers;

 

          (B)   prosecutors;

 

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

 

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

 

(b)   Statementof the Privilege. Thegovernment has a privilege to refuse to disclose the identity of an informer.

 

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

 

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

 

(1)   VoluntaryDisclosure. If theidentity of the informer or the informer's interest in the subject matter ofthe informer's communication has been disclosed to those who would have causeto resent the communication by a holder of the privilege or by the informer'sown action.

 

(2)   Informer asWitness. The informerappears as a witness for the government.

 

(e)   Testimonyon Merits.

 

(1)   In General. If it appears from the evidence inthe case or from another showing by a party that an informer may be able to givetestimony necessary to a fair determination of the issue of guilt or innocencein 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 aprivilege, the judge may give the government an opportunity to show in camerafacts relevant to determining whether the informer can, in fact, supply thetestimony. The judge may make such orders regarding the procedures to befollowed as are consistent with the spirit and purpose of this rule.

 

(2)   Effect ofInvoking Privilege.If the judge finds there is reasonable probability that the informer can givethe testimony, and the government elects not to disclose the informer'sidentity, the judge, on motion of the defendant in a criminal case, shalldismiss the charges to which the testimony would relate. The judge may dismissthe charges on the judge's own motion. In a civil case, the judge may make anyorder that justice requires.

 

(3)   Record forAppeal. Evidencesubmitted to the judge may be sealed and preserved to be made available to theappellate court in the event of an appeal, and the contents shall not otherwisebe revealed without consent of the government.

 

(4)   Right to bePresent. All counseland parties shall be permitted to be present at every stage of the proceedingsunder this subparagraph, except a showing in camera at which no counsel orparty shall be permitted to be present.

 

(f)       Legalityof Obtained Evidence.

 

(1)   Requirements forDisclosure. The judgemay require the disclosure of the identity of an informer if

 

(A)   informationfrom the informer is relied upon to establish the legality of the means bywhich evidence was obtained; and

 

(B)   theparty attacking the legality of obtaining the evidence makes a substantialpreliminary showing that the law enforcement officer intentionally, knowinglyor with reckless disregard for truth falsely swore that the information wasreceived from an informer reasonably believed to be reliable or credible and thatprobable cause does not exist absent the information furnished by the informer.

 

(2)   Process ofDisclosure. The judgeshall, at the request of the government, direct that the disclosure be made incamera. All counsel and parties concerned with the issue of legality shall bepermitted to be present at every stage of the proceeding under thissubparagraph, except at a disclosure in camera, at which no counsel or partiesshall be permitted to be present. If disclosure of the identity of the informeris made in camera, the record thereof shall be sealed and preserved to be madeavailable to the appellate court in the event of an appeal, and the contentsshall not otherwise be revealed without consent of the government.

 

 

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

 

ADVISORYCOMMITTEE NOTE

 

Rule 505incorporates the concept reflected in Roviaro v.United States, 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623 (1957), that thegovernment has a "privilege to withhold from disclosure the identity ofpersons who furnish information of violations of law to officers charged withthe 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 ratherthan the informer, the witness, or the law enforcement officer. This is so eventhough the earlier Rule 36, Utah Rules of Evidence, (1971) was couched inlanguage that suggested that it was the witness' privilege.

 

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

 

Subparagraph(d)(1) sets forth the test to be applied by the court in determining whether toallow the privilege or to require the government to elect to disclose theidentity of the informer or to dismiss, in a criminal case. The rulecontemplates discretion in the court to hold in camera hearings to determinewhether the test is met and to seal and preserve any information disclosed insuch 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 suppressor similar proceeding where a party opposed to the privilege wishes to learnthe identity of a confidential informant in order to attack the probable causeupon which the search was based.