stating that disclosure was appropriate where the officer did not know the appellant; the appellant was arrested seven months after the controlled buy; and the officer was the only prosecution witness
How later courts described this case
- stating that disclosure was appropriate where the officer did not know the appellant; the appellant was arrested seven months after the controlled buy; and the officer was the only prosecution witness
- holding that where a single police officer is the only eyewitness to a crime other than the CI, the arrest was not made shortly after the crime, and the defendant has presented evidence supporting a mistaken identity defense, justice requires the disclosure of the CI's identity
- holding that the Commonwealth was required to disclose the informant’s identity to defendant where the defense was mistaken identity
- where there was a pre-arrest delay of seven months that could have impaired the officer’s memory, where the defendant testified that it was not him and there was only a single viewing by the sole prosecution witness, disclosure was required
Written by the judges who cited it.
The opinion
CASTILLE, Justice,
concurring.
I agree with the majority’s conclusion that under the instant facts of this ease, namely the lengthy time period between the alleged transaction and the arrest, appellant is entitled to a new trial. However, I am troubled by the manner in which the majority has analyzed the trial court’s responsibility to weigh other relevant factors before considering whether to disclose the identity of a confidential informant.
*61 This Court has repeatedly acknowledged that the Commonwealth has a qualified privilege to refrain from disclosing the identity of certain material witnesses, including confidential informants. Commonwealth v. Herron, 475 Pa. 461 , 380 A.2d 1228 (1977); Commonwealth v. Washington, 463 Pa. 206 , 344 A.2d 496 (1975); Commonwealth v. Carter, 427 Pa. 53 , 233 A.2d 284 (1967). The purpose of the privilege is to preserve the public’s interest in effective law enforcement. Roviaro v. United States, 353 U.S. 53, 59 , 77 S.Ct. 623, 627 , 1 L.Ed.2d 639 (1957); Commonwealth v. Bonasorte, 337 Pa.Super. 332, 352 , 486 A.2d 1361, 1372 (1984) (“Protecting the identity of informants is recognized as a vital public interest because it is necessary to protect the flow of information from informants as well as to insure the safety of informants”). In recognizing this privilege, this Court accepted the balancing test as set forth by our United States Supreme Court in Roviaro :
We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders non-disclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.
Carter, 427 Pa. 53, 59 , 233 A.2d 284, 287 (1967), quoting, Roviaro, 353 U.S. 53, 62 , 77 S.Ct. 623, 628 , 1 L.Ed.2d 639 (1957) (emphasis added).
As the majority reaffirms today, the Carter decision also held that the balance tips in favor of disclosure where guilt is based solely on a single observation by the police but testimony from a more disinterested source is available. Carter, 427 Pa. 53, 61 , 233 A.2d 284, 288 (1967). I fear the majority places too much weight on this factor; therefore, I must emphasize that there is much more to this inquiry, even under the limited facts and circumstances of Carter and in the instant case.
Indisputably, the safety of the confidential informant is a controlling factor in determining whether to reveal his identi *62 ty. Thus, the “scales of disclosure” should not tip in either direction until (1) the defendant has established that disclosure will materially aid in his or her defense and (2) the Commonwealth has had an opportunity to establish evidence concerning the safety of the informant that outweighs the defendant’s interest in disclosure.
Before an informant’s identity may be revealed, the defendant must lay an evidentiary basis or foundation that the confidential informant possesses relevant information that will materially aid the defendant in presenting his or her defense and that the information is not obtainable from another source. See Herron, 475 Pa. 461, 466 , 380 A.2d 1228, 1230 (1977); see also, Commonwealth v. Bradshaw, 238 Pa.Super. 22, 29, 364 A.2d 702, 706 (1975); Commonwealth v. Pritchett, 225 Pa.Super. 401, 407 , 312 A.2d 434, 438 (1973). Bare or bald assertions that the witness will aid in the defense are not sufficient. Herron, 475 Pa. 461, 466 , 380 A.2d 1228, 1230 (1977) (“more is necessary than a mere assertion by the defendant that such disclosure might be helpful in establishing a particular defense”). Although the defendant cannot be expected to predict exactly what the witness would say, he or she must demonstrate that there is a reasonable likelihood that the witness will exonerate the defendant and that the evidence is not obtainable from another source. See Commonwealth v. Knox, 273 Pa.Super. 563, 568 , 417 A.2d 1192, 1194 (1980); see also, Pritchett, 225 Pa.Super. 401, 408 , 312 A.2d 434, 438 (1973).
Furthermore, simply because appellant is asserting the defense of mistaken identity, does not mean that he is automatically entitled to the informant’s identity. If this were the conclusion of this Court, every suspect arrested under analogous circumstances would be able to assert mistaken identity knowing the Commonwealth’s reluctance to expose their confidential witnesses, thereby hoping that the Commonwealth withdraws the charge so as to protect its witness from possible harm. As we have stated, there is an important public interest in protecting the free flow of information in further- *63 anee of effective law enforcement. Roviaro, 353 U.S. 53, 59 , 77 S.Ct. 623, 627 , 1 L.Ed.2d 639 (1957).
Once a foundation is established that the informant’s identity will materially aid in the accused’s defense, the trial court must then afford the Commonwealth an opportunity to present evidence that disclosure of the confidential informant’s identity would subject him or her to danger that is reasonably specific and liable to occur (e.g. evidence of defendant’s prior record, propensity for violence, reputation in the community, relatives at risk, serving a prison sentence, etc.) so that the trial court can make an informed decision by weighing the risks of danger against the need for disclosure. If the Commonwealth makes a reasonably specific showing that the informant or that informant’s family or friends would be harmed or killed in retaliation for the confidential informant’s assistance to the police, the Commonwealth’s privilege should prevail. Special precautions may be necessary in this weighing process, such as an in camera hearing to determine whether the informant’s testimony would in fact be helpful to the defendant. See Pritchett, 225 Pa.Super. 401, 410 , 312 A.2d 434, 439 (1973) (disclosure of a confidential informant’s identity should be denied or special precautions ordered if the Commonwealth makes a convincing showing that the informant may be injured or killed).
Finally, in the instant matter, rather than forcing the Commonwealth to drop the prosecution if the Commonwealth chooses not to jeopardize the confidential informant’s safety by disclosing the witness’s identity, the defense should be permitted instead to request that the fact finder consider the absence of the “material” witness and any adverse inference resulting from it, thus, curing any prejudice caused to appellant due to the missing witness. By employing a “missing witness” charge the fact finder will still be required to weigh other relevant testimony and still take into account the factor of the Commonwealth not presenting a witness which is only available to the Commonwealth. There are no other circumstances under which a party to a legal matter has what amounts to a directed verdict (not guilty in this case) where a *64 material witness uniquely available to one party is not presented. The punitive procedure of forcing the Commonwealth to drop all charges if the Commonwealth concludes that identifying a confidential informant will jeopardize the informant’s safety is not in the public’s interest in prosecuting criminal conduct in our society.
Some information concerning the commission of crimes is simply unavailable through the normal course of police investigations; therefore, confidential informants have become a significant asset in combating criminal conduct, especially in the continuing fight against the proliferation of drugs. To force disclosure of the confidential informant’s identity absent a showing by the defendant that the informant would materially aid the defendant’s case, unnecessarily jeopardizes the life of the informant and the police officers who work with him. Requiring less would simply play into the hands of those defendants who merely want to learn the identification of his or her Judas in order to make the informant his or her next victim.