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Name: Davis v. Superior Court
Case #: B216345
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 07/22/2010

Under Evidence Code section 1041, disclosure of the identity of a material witness is not mandatory. Instead it depends on whether the defendant makes an adequate showing that the informant can give exculpatory evidence. The victim and four others were walking when they were approached by a group of men, one of whom asked if the victim gang banged. The man then produced a handgun and shot the victim. Several days after the shooting, a confidential informant identified petitioner as the shooter and led police to petitioner’s home where he was arrested. Petitioner contended that because the informant was a percipient witness to the crime, disclosure of his identity was mandatory. The appellate court disagreed. Under Evidence Code section 1041, subdivision (a), the prosecution must disclose the name of a material witness in a criminal case or suffer dismissal of the charges against the defendant. However, the defendant bears the burden of adducing some evidence that there is a reasonable possibility that the confidential informant could give evidence on the issue of guilt that might exonerate the defendant. Such evidence can be presented at an in camera hearing outside the presence of defendant. Because no hearing was held in the instant case, the appellate court granted petitioner’s writ of mandate and remanded for an in camera hearing as to the potential evidence of the confidential informant.