Commonwealth v. Bradshaw

Concurring and Dissenting Opinion by

Hoffman, J.:

While I join in part I and part III of the majority opinion, I dissent from its discussion in part II.

It is clear that the government has a privilege to withhold the identity of persons who furnish information to law enforcement officials. 1 “The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their *32 knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.” Roviaro v. United States, 353 U. S. 53, 59 (1957). In other words, the obvious purpose of the privilege is to maintain the Government’s channels of communication by shielding the identity of an informer from those who would have cause to resent his conduct. 2

The scope of the privilege, however, is limited by its underlying purpose: “[O]nce the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.” Roviaro v. United States, supra at 60. “Once the defendant learns the state secret or the identity of the informer, the underlying basis for the privilege disappears. . . .” Jencks v. United States, 353 U.S. 657, 675 (1957) (Concurring opinion by Burton, J.). See also United States v. Brenneman, 455 F.2d 809 , 810 n. 1 (3d Cir. 1972); United States v. Day, 384 F.2d 464 (3d Cir. 1967); Fed. R. Evid. 510 c (1); McCormick, Evidence §111 (2d ed. 1972); 76 A.L.R. 2d 262 , §10.

In the instant case, the appellant is unaware of the present whereabouts of the informer. The appellant concedes, however, that he is cognizant of the informer’s name, most recent address, and parents’ address. 3 Because *33 the appellant possesses this information, the underlying rationale supporting the privilege is no longer applicable. The government, therefore, cannot assert that it is privileged to withhold relevant information. In essence, the issue of whether the government can assert its privilege disappears. Churder v. United States, 387 F.2d 825 (8th Cir. 1968). Upon proper request, therefore, the government must disclose pertinent information in its or its witnesses’ possession. The government, however, need not produce the informant. 4 See United States v. Super, 492 F.2d 319 (2d Cir. 1974); United States v. Sin Nagh Fong, 490 F.2d 527 (9th Cir. 1974); United States v. Ortega, 471 F.2d 1350 , 1358-1359 n.2 (2d Cir. 1972); Wilson v. United States, 409 F.2d 184 (9th Cir. 1969); Clingan v. United States, 400 F.2d 849 (5th Cir. 1968); United States v. Cimino, 321 F.2d 509 (2d Cir. 1963); People v. Avila, 253 Cal. App. 2d 308 , 61 Cal. Rptr. 441 (1967). It is, therefore, unnecessary to determine whether *34 Commonwealth v. Carter, 427 Pa. 53 , 233 A.2d 284 (1967) controls the instant case.

Finally, the appellee contends that any error committed in not revealing the requested information was harmless. To be classified as harmless, the error must be harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 (1967); Commonwealth v. Davis, 452 Pa. 171 , 305 A.2d 715 (1973); Commonwealth v. Pearson, 427 Pa. 45 , 233 A.2d 552 (1967). I cannot speculate, however, whether the government had information on the whereabouts of the informer, whether the appellant would have been able to find him, or what the informer would have testified to at the trial. Under these circumstances, the error is not harmless beyond a reasonable doubt.

I would reverse and remand for a new trial.

. The privilege is a peculiar evidentiary privilege in that the evidence is withheld not only from the factfinder, but also from the defendant.

. Mr. Justice Clakk’s dissent in Roviaro graphically describes the consequences of not upholding this privilege: “Enforcement is, therefore, most difficult without the use of ‘stool pigeons’ or informants. ... To give them protection governments have always followed a policy of nondisclosure of their identities. Experience teaches that once this policy is relaxed — even though the informant be dead — its effectiveness is destroyed. Once an informant is known the drug traffickers are quick to retaliate. Dead men tell no tales. The old penalty of tongue removal, once visited upon the informer Larunda, has been found obsolete.” Roviaro v. United States, supra at 66-67.

. An important facet in preserving the anonymity of the informant is the informant’s concern for the safety of his family. *33 Disclosure of the informant’s identity alone may imperil the informant’s family. Once the identity of the informant is learned, therefore, the underlying basis of the privilege disappears.

. Where the informer’s name and whereabouts are known to the defendant, most courts will not go through this analysis. Rather, most courts take the view that the maneuvering for the identity of the informer in these circumstances cannot be supported on the basis of any legitimate need for the identity of the informer. United States v. Day, supra. Therefore, where the name and whereabouts of the informer are available to the defendant, most courts find no prejudice results when the government refuses to disclose the requested information. See, e.g., United States v. Herbert, 502 F. 2d 890 (10th Cir. 1974); United States v. Weinberg, 478 F. 2d 1351 (3d Cir. 1973); United States v. Prada, 451 F. 2d 1319 (2d Cir. 1971); United States v. Escobedo, 430 F. 2d 603 (7th Cir. 1970); Glass v. United States, 371 F. 2d 418 (7th Cir. 1967); Williams v. United States, 273 F. 2d 781 (9th Cir. 1959); Smith v. United States, 273 F. 2d 462 (10th Cir. 1959). In the instant case, the appellant did not know the present whereabouts of the informer; hence he was not available io the appellant.