State v. Brown

Holmes, J.,

dissenting. I am in agreement with the majority that the controlling precedent is State v. Williams (1983), 4 Ohio St.3d 74 , 4 OBR 196, 446 N.E.2d 779 . However, while paying lip service to the syllabus in Williams , the majority has effectively and in cavalier disregard of the policies underlying that decision, undermined the public’s interest in protecting the anonymity of confidential informants. For this reason, I dissent.

Before arriving at our syllabus in Williams , we recognized two competing interests: (1) the state’s right in maintaining the anonymity of its informants and (2) the accused’s right to confront and cross-examine the state’s witnesses. In order to compel disclosure of a confidential informant, we held that the *655 defendant was required to demonstrate either that the informant’s testimony is “vital to establishing an element of the crime” or that the testimony of the informant “would be helpful or beneficial to the accused in preparing or making a defense to criminal charges.” Id. at syllabus. In either instance, it is incumbent on the defendant to make the requisite specific showing. Properly applied, Williams places the burden on the defendant to oppose the prosecution’s efforts to quash a subpoena by demonstrating that his or her interest in revealing the informant’s identity outweighs the need for secrecy.

Before the defendant can overcome the government’s privilege to refrain from disclosing the identity of an informant, other courts have required the defendant to make a specific showing of how the informant’s testimony would significantly aid him in establishing an asserted defense. See United States v. Diaz (C.A.5, 1981), 655 F.2d 580, 588 . “ * * * [Speculation regarding what an informant might possibly testify to is not sufficient to require disclosure.” United States v. Halbert (C.A.10, 1982), 668 F.2d 489, 496 . See, also, State v. Butler (1984), 9 Ohio St.3d 156 , 9 OBR 445, 459 N.E.2d 536 (Even where the defense is entrapment, the defendant is required to plead specific facts before a trial judge is required to order divulgence of the informant’s identity.).

The majority has entirely relieved the accused of this burden by permitting in all cases an in camera interrogation of the confidential informant where the prosecution has failed to show that “it is manifestly clear that the testimony will in no way aid the defendant.” As the law now stands, the informant’s identity will be revealed to defense counsel and the court upon mere speculation that the informant has exculpatory evidence to give. In all like cases to follow, the prosecution will have to demonstrate that the testimony of the informant is not needed to establish an element of the crime, and would not be beneficial in any way to the defense of the charges.

The case sub judice does not involve a situation where, before the accused can be found guilty beyond a reasonable doubt, the prosecution must introduce the testimony of a confidential informant. Unlike State v. Phillips (1971), 27 Ohio St.2d 294 , 56 O.O.2d 174 , 272 N.E.2d 347 , a case in which we ordered disclosure of the informant’s identity because the informant was the sole witness to the sale of drugs, the drug transaction involving the appellee was witnessed by an undercover agent. The agent testified that he saw the informant hand appellee a twenty dollar bill. By turning around as much as possible without looking suspicious and by looking into his rear view mirror, the agent was able to observe appellee place an item in the informant’s hand, which was later examined and found to be crack cocaine. On the basis of this evidence, appellee could properly be convicted of aggravated trafficking. It was not necessary for the state to present the testimony of the confidential *656 informant. Had appellee been able to give an argument as to why the informant’s testimony was material to his innocence, appellee would clearly have been entitled to subpoena this witness. In this scenario the scope of the “informant’s privilege” would properly be restricted by the defendant’s right to a fair trial.

Since I believe that appellee failed to demonstrate that his interest in presenting the confidential informant as a witness on his behalf, his right to compulsory process under both the United States and Ohio Constitutions was not violated.

Accordingly, I would reverse the judgment of the court of appeals.