12/27/2023
CONFIDENTIAL INFORMANTS: Commonwealth v. Gandia, 492 Mass. 1004 (2023). In order to have the ID of a CI disclosed the SJC uses the following standard.
As a matter of substantive law, this case is governed by the legal framework that we clarify and reaffirm today in Whitfield, 492 Mass. at 68-69. See Bonnett, 472 Mass. at 846. Under that framework, a motion judge must apply a two-stage inquiry to a motion for disclosure of the identity of a confidential informant:
"In the first stage of the analysis, a court makes a preliminary determination whether the Commonwealth properly asserted the informant privilege, see Mass. G. Evid. ยง 509(a)(1), and if so, whether the defendant has met his or her burden to challenge the Commonwealth's invocation of the privilege by establishing 'an impermissible interference with [the defendant's] right to present a defense.' Bonnett, supra. The informant privilege may be asserted by the Commonwealth where the Commonwealth otherwise would be required to provide an informant's identity to a defendant as part of its discovery obligations under Mass. R. Crim. P. 14[, as appearing in 442 Mass. 1518 (2004)]. See id., quoting Roviaro [v. United States, 353 U.S. 53, 59 (1957)]. Should a defendant wish to overcome the informant privilege, the defendant bears the burden of challenging the Commonwealth's assertion. [Commonwealth v. Dias, 451 Mass. 463, 464 (2008)]. 'We have characterized a defendant's obligation at this juncture as "relatively undemanding," but it does require the defendant to articulate a basis sufficient for the judge to "assess the materiality and relevancy of the disclosure to the defense, if that relevancy is not apparent from the nature of the case."' [Commonwealth v. D.M., 480 Mass. 1004, 1006 (2018)], quoting Bonnett, supra at 847.
"Only if both the Commonwealth and the defendant have met their burdens in the initial stage should a judge then proceed to the second stage of the analysis, where the judge must 'decide whether the informant's identity and concomitant information are sufficiently "relevant and helpful to the defense of an accused" that it must be disclosed.' Bonnett, 472 Mass. at 847, quoting Dias, 451 Mass. at 468. This determination necessitates a balancing of 'the public interest in protecting the flow of information against [the defendant's] right to prepare his [or her] defense.' Bonnett, supra at 847-848, quoting Roviaro, 353 U.S. at 62. The inquiry at the balancing stage must be case-specific: '[w]hether a proper balance renders nondisclosure erroneous must . . . tak[e] into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.' Roviaro, supra. Where disclosure (1) is sufficiently 'relevant and helpful to the defense of an accused' or (2) 'is essential to a fair determination of a cause, the privilege must give way.' Dias, supra, quoting Roviaro, supra at 60-61."Whitfield, supra at 68-69.
Here, it is undisputed that the motion judge failed to conduct this two-stage inquiry. This was an abuse of discretion. See Bonnett, 472 Mass. at 850 (remanding for further proceedings "to conduct the requisite 'orderly appraisal'" of factors relevant to motion for disclosure of informant's identity). Moreover, for the reasons discussed infra, we conclude that it is apparent on the
undisputed record before us that disclosure is unwarranted under the applicable legal framework.
First, the Commonwealth properly asserted the informant privilege, where it raised sufficient concern for the safety of the informant should his or her identity be disclosed and it asserted that revealing the identity of the informant would have a "chilling effect" on such informants in other cases making it "unlikely that they would continue to participate in investigations." The defendant argues that the Commonwealth's invocation of the privilege is insufficient because it fails to offer "specific" and "tangible" safety concerns in the circumstances of this case. We disagree. Here, the Commonwealth argued that disclosure would place the informant in danger where the informant had provided numerous tips to the Springfield police department in the past, leading to the seizure, pursuant to warrants, of various forms of contraband, including fi****ms. This was sufficient to invoke the privilege. See D.M., 480 Mass. at 1005 (privilege properly asserted where informant's prior involvement in fi****ms cases would result in danger to informant if identity revealed).
Next, we conclude that, in the circumstances of this case, the defendant has met his "relatively undemanding" burden at the initial stage of the inquiry to show that the informant's identity is material and relevant to his defense at trial, see Bonnett, 472 Mass. at 847; Commonwealth v. Kelsey, 464 Mass. 315, 323 (2013), where the informant was present during the events leading up to the defendant's arrest, and the defendant asserts that the informant is the only nongovernment witness with the potential to rebut the police officers' anticipated testimony -- arguably relevant to the element of intent to distribute -- that people were entering and leaving the surveilled premises in a manner consistent with drug dealing. [Note 6] However, for the reasons discussed infra, we conclude that the requisite balancing of the interests leads to the conclusion that disclosure of the informant's identity is unwarranted.
At the second stage of the inquiry, a judge must assess whether the informant's identity sufficiently is "relevant and helpful to the defense of an accused" to require disclosure. D.M., 480 Mass. at 1006, quoting Bonnett, 472 Mass. at 847. As stated supra, in making this determination, a judge must "balance[] . . . the public interest in protecting the flow of information against the individual's right to prepare his [or her] defense" and consider "the crime charged, the possible defenses, the possible significance of the [privileged] testimony, andother relevant factors" (citation omitted). Bonnett, supra at 848. Accordingly, the inquiry at this stage boils down to "whether disclosure would have provided material evidence needed by the defendant for a fair presentation of his case to the jury." Commonwealth v. Madigan, 449 Mass. 702, 706 (2007), quoting Commonwealth v. Lugo, 406 Mass. 565, 574 (1990).
