Trial court did not err by sustaining claim of privilege and refusing to order disclosure of informant’s identity, after finding the informant was not a material witness and that such disclosure was contrary to public interest. Bradley was convicted of being a felon in possession of a gun (former Pen. Code, § 12021, subd. (a)(1)). On appeal he challenged the denial of his motion to disclose the identity of a confidential government informant whom he claimed entrapped him to possess the weapon. He also argued the trial court erred by sustaining a government agent’s claim of privilege not to testify about the informant. A stipulation was read to the jury that an informant was involved in the case. Held: Affirmed. Evidence Code sections 1041 and 1042 codify the rules and privileges granted to a public entity not to disclose, and to prevent others from disclosing, the identity of confidential informants. The privilege may be claimed when disclosure is forbidden by statute or when such disclosure is against public interest (i.e., the necessity for preserving confidentiality of identity outweighs the necessity for disclosure in the interest of justice). The trial court may hold an in camera hearing to ascertain whether the informant might provide exculpatory evidence. If so, the informant is a material witness. If not, disclosure of the informant’s identity is prohibited (Evid. Code, § 1042). Here, the trial court conducted a sufficiently searching inquiry regarding the informant before concluding there was no reasonable possibility the informant could provide exculpatory evidence or that nondisclosure would deprive Bradley of a fair trial.
Denial of defendant’s motion to disclose the informant’s identify did not deprive him of due process of law. Bradley argued the trial court’s refusal to order disclosure of the informant’s identity denied him his rights to due process of law, confrontation, a jury trial, and compulsory process. The in camera proceedings did not violate his constitutional rights, as the state has a strong interest in protecting the confidentiality of its informants and the procedures embodied by Evidence Code section 1042 were designed to implement that privilege. It is for the trial court to determine whether the public interest will suffer by disclosure. While the privilege not to disclose an informant’s identity impinges on a defendant’s ability to raise a defense or confront a witness, those rights are not absolute and must be balanced against the state’s interest in preserving confidentiality. “That balance is determined on a case-by-case basis, and it hinges on whether the informant is a material witness, i.e., whether the informant can give exculpatory evidence.” If not, the privilege prevails and defendant cannot complain of a denial of due process.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C075294.PDF