THE STATE OF FLORIDA, APPELLANT,
v.
EDUARDO VILLAR, APPELLEE
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Florida appealed the dismissal of drug trafficking charges against Villar after the trial court ordered disclosure of a confidential informant's identity and dismissed the case when the state refused to comply. The appellate court reversed, holding that before dismissing charges based on non-disclosure of an informant's identity, the trial court must conduct an in camera hearing to determine whether the informant's testimony is truly essential to the defense.
The court reversed and remanded, holding that before imposing the sanction of dismissal for non-disclosure of a confidential informant's identity, a trial court must conduct an in camera hearing to assess the nature of the informer's probable testimony and determine whether the state's failure to produce the informant is justified.
[1] The state generally has a privilege to withhold the identity of a confidential informant, but this privilege is subject to exceptions.
[2] Disclosure of a confidential informant's identity may be required when the informant's testimony is essential to the defendant's defense.
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Join FLexlaw to unlock all legal intelligence“the burden is on the defendant to show that he warrants an exception to the general rule of nondisclosure”
Establishes that defendants must affirmatively demonstrate why an exception to the confidential informant privilege applies
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Join FLexlaw to unlock all legal intelligenceVillar was charged with drug trafficking. He raised a defense that his presence at the drug transaction site was unrelated to the crime and filed affi…
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NESBITT, Judge.
The defendant, charged with drug trafficking, properly raised the defense that his presence at the site of the drug transaction had no relation to the crime charged. He filed affidavits to the effect that the confidential informant employed in the transaction might possibly prove to be the only corroborating witness available. The trial court entered an order requiring only that the state produce the confidential informant for deposition. When the state refused to take a further position and the confidential informant refused to appear, the trial judge forthwith dismissed the information. We reverse and remand on the following analysis.
As a general rule, the state has the privilege of not disclosing the identity of a confidential informant; however, there are exceptions to this rule, e.g., where the identity of the informer is essential to the defense. State v. Acosta, 439 So. 2d 1024 (Fla. 3d DCA 1983); Elkins v. State, 388 So. 2d 1314 (Fla. 5th DCA 1980); Fla.R. Crim.P. 3.220(c)(2).
The general rule and its exception have been set forth in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); United States v. Toombs, 497 F. 2d 88 (5th Cir.1974), and Treverrow v. State, 194 So. 2d 250 (Fla.1967).
The burden is on the defendant to show that he warrants an exception to the general rule of nondisclosure. See State v. Davis, 308 So. 2d 539 (Fla. 3d DCA 1975).
If informers’ names were subject to being readily revealed, the use of confidential informants, an enormously important aid to law enforcement, would be almost cut off. For this reason, a privilege is recognized in respect to disclosure of the identity of an informer who has given information about supposed crimes to a prosecuting or investigating officer or to someone for the purpose of its being relayed to such an officer. See McCormick on Evidence § 111 at 270-73 (3d ed.1984).
One important qualification to this privilege occurs when evidence of the informer’s identity becomes important to the establishment of the defense to the crime. In such a case, the court may require disclosure, Roviaro, 353 U.S. at 53, 77 S.Ct. at 623, and if it is still withheld, the prosecution may be dismissed. Acosta, 439 So. 2d at 1027: State v. Weinfurt, 409 So. 2d 1187 (Fla. 4th DCA 1982); United States v. Keown, 19 F.Supp. 639, 646 (W.D.Ky.1937).
In order to prevent the privilege from being rendered meaningless by automatic defense allegations of the informer’s potential value as a witness, an in camera hearing on the nature of the informer’s probable testimony is required, State v. Martin, 522 So. 2d 872 (Fla. 3d DCA 1988); State v. Jimenez, 428 So. 2d 356 (Fla. 3d DCA 1983); State v. Nelson, 405 So. 2d 491 (Fla. 3d DCA 1981), once a specific color-able defense is alleged. State v. Acosta, 439 So. 2d at 1026; State v. Mesa, 395 So. 2d 242 (Fla. 3d DCA 1981).
After that hearing, the trial court may assess the ultimate sanction of dismissal upon it. State v. Martin, 522 So. 2d 872 (Fla. 3d DCA 1988); see also State v. Jimenez, 428 So. 2d 356 (Fla. 3d DCA 1983) (in camera hearing is a necessary condition precedent to sanction of dismissal).
An in camera proceeding is the appropriate means for the trial court to weigh competing interests and determine whether the state’s failure to produce is justified. State v. Martin, 522 So. 2d at 873.
Accordingly, we reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
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Citator
Cited By
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State v. Davila, 570 So. 2d 1035 (Fla. 2d DCA 1990)…tate refused to disclose the identity of Cl 88-56, the trial judge dismissed the charges against all three defendants. In discussing the standards applicable to the disclosure of confidential informants, the third district court in State v. Villar, 554 So. 2d 576 (Fla. 3d DCA 1989) noted: As a general rule, the state has the privilege of not disclosing the identity of a confidential informant; however, there are exceptions to this rule, e.g., where the identity of the informer is essential to the defense. S…
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State v. Armand la Rosa, 555 So. 2d 1297 (Fla. 3d DCA 1990)…PER CURIAM. This is a petition for a writ of certiorari to review the trial court’s order compelling the state to disclose the identity of an informant. On the authority of State v. Villar, 554 So. 2d 576 (Fla. 3d DCA 1989), we grant the petition, quash the order under review, and remand for further proceedings in light of Villar. [*1298] Petition granted; order under review quashed; remanded for further proceedings.…
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Coll v. State, 578 So. 2d 906 (Fla. 3d DCA 1991)…4 (Fla.1982); Antone v. State, 382 So. 2d 1205, 1214 (Fla.), cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141, reh’g denied, 449 U.S. 1057, 101 S.Ct. 632, 66 L.Ed.2d 512 (1980); State v. Hassberger, 350 So. 2d 1 (Fla.1977); State v. Villar, 554 So. 2d 576 (Fla. 3d DCA 1989); State v. Zamora, 534 So. 2d 864 (Fla. 3d DCA 1988); Herrera v. State, 532 So. 2d 54 (Fla. 3d DCA 1988).…
Authorities Cited (13 total)
- Roviaro v. United States, 353 U.S. 53 (U.S. 1957)
- Westberry v. Daves Auto Parts, 194 So. 2d 250 (Fla. 1967)
- United States v. Toombs, 497 F.2d 88 (5th Cir. 1974)
- State v. Acosta, 439 So. 2d 1024 (Fla. 3d DCA 1983)
- State v. Mesa, 395 So. 2d 242 (Fla. 3d DCA 1981)
- Elkins v. State, 388 So. 2d 1314 (Fla. 5th DCA 1980)
- State v. Davis, 308 So. 2d 539 (Fla. 3d DCA 1975)
- State v. Maximo Jimenez, 428 So. 2d 356 (Fla. 3d DCA 1983)
- MacKey v. State, 409 So. 2d 1187 (Fla. 4th DCA 1982)
- Bean v. State, 409 So. 2d 1187 (Fla. 4th DCA 1982)