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Rule 505.Government Informer.

 

(a)   Definitions.

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

 

(a)(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.

 

(a)(3)   "Lawenforcement officer" includes

 ?????????????????????? (a)(3)(A)  peaceofficers;

 

(a)(3)(B)   prosecutors;

 

(a)(3)(C)   members of a legislative committee or its staff conductingan investigation; and

 

(a)(3)(D)   members of a regulatory agency or its staff conducting aninvestigation.

 

(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 beclaimed by counsel for the government or in the absence of counsel by anotherappropriate representative. The privilege may be claimed regardless of whetherthe information was furnished to an officer of the government claiming theprivilege.

 

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

(d)(1)   Voluntary Disclosure. Ifthe identity of the informer or the informer's interest in the subject matterof the informer's communication has been disclosed to those who would havecause to resent the communication by a holder of the privilege or by theinformer's own action.

 

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

 

(e)   Testimonyon Merits.

(e)(1)   In General. If it appears from the evidence in the case or from anothershowing by a party that an informer may be able to give testimony necessary toa fair determination of the issue of guilt or innocence in a criminal case orof a material issue on the merits of a civil case, whether or not thegovernment is a party, and the government invokes a privilege, the judge maygive the government an opportunity to show in camera facts relevant todetermining whether the informer can, in fact, supply the testimony. The judgemay make such orders regarding the procedures to be followed as are consistentwith the spirit and purpose of this rule.

 

(e)(2)   Effect of Invoking Privilege. If the judge findsthere is reasonable probability that the informer can give the testimony, andthe government elects not to disclose the informer's identity, the judge, onmotion of the defendant in a criminal case, shall dismiss the charges to whichthe testimony would relate. The judge may dismiss the charges on the judge'sown motion. In a civil case, the judge may make any order that justicerequires.

 

(e)(3)   Record for Appeal. Evidence submitted tothe judge may be sealed and preserved to be made available to the appellatecourt in the event of an appeal, and the contents shall not otherwise berevealed without consent of the government.

 

(e)(4)   Right to be Present. All counsel andparties 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.

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

 

(f)(1)(A)   information from the informer is relied upon to establishthe legality of the means by which evidence was obtained; and

 

(f)(1)(B)   the party attacking the legality of obtaining the evidencemakes a substantial preliminary showing that the law enforcement officerintentionally, knowingly or with reckless disregard for truth falsely sworethat the information was received from an informer reasonably believed to bereliable or credible and that probable cause does not exist absent theinformation furnished by the informer.

 

(f)(2)   Process of Disclosure. The judge shall, at therequest of the government, direct that the disclosure be made in camera. Allcounsel and parties concerned with the issue of legality shall be permitted tobe present at every stage of the proceeding under this subparagraph, except ata disclosure in camera, at which no counsel or parties shall be permitted to bepresent. If disclosure of the identity of the informer is made in camera, therecord thereof shall 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.

 

 

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

 

Original Advisory Committee Note. ?Rule 505 incorporates the concept reflected in Roviaro v. United States, 353 U.S. 53, 1L. Ed. 2d 639, 77 S. Ct. 623 (1957), that the government has a "privilegeto withhold from disclosure the identity of persons who furnish information ofviolations of law to officers charged with the enforcement of that law."The Utah Supreme Court adopted the Roviaro approachin State v. Forshee, 611 P.2d 1222 (Utah1980).

 

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 courtin determining whether to allow the privilege or to require the government toelect to disclose the identity of the informer or to dismiss, in a criminalcase. The rule contemplates discretion in the court to hold in camera hearingsto determine whether the test is met and to seal and preserve any informationdisclosed in such hearings, for appellate review.

 

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