Tuesday, September 21, 2010
The Informant!: Court Of Appeals Of Texas Opinion Lays Out Test For Exception To Informant Exception
Texas Rule of Evidence 508(a), Texas' informant privilege, provides that
The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.
That said, there is an exception to this privilege contained in Texas Rule of Evidence 508(c)(2), which provides that
If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of a material issue on the merits in a civil case to which the public entity is a party, or on guilt or innocence in a criminal case, and the public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the court may direct that testimony be taken if it finds that the matter cannot be resolved satisfactorily upon affidavit. If the court finds that there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose the informer's identity, the court in a civil case may make any order that justice requires, and in a criminal case shall, on motion of the defendant, and may, on the court's own motion, dismiss the charges as to which the testimony would relate. Evidence submitted to the court shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity. All counsel and parties shall be permitted to be present at every stage of proceedings under this subdivision except a showing in camera, at which no counsel or party shall be permitted to be present.
So, how exactly does this exception apply in practice? The recent opinion of the Court of Appeals of Texas, San Antonio, in Morin v. State, 2010 WL 3582382 (Tex.App.-San Antonio 2010), provides a pretty good indication.
In Morin, the evidence at trial established that
[William] Swisher met John Villarreal at Villarreal's apartment on June 24, 2007, where the two men used cocaine. After Swisher fell asleep on Villarreal's bed, Villarreal heard someone at his door. At the door was [Ruben] Morin, who pushed his way into the apartment. Morin placed a gun to Villarreal's chin upon entering the apartment and asked Villarreal whether Swisher had hidden any drugs or money inside the residence. Villarreal answered negatively and Morin attempted to arouse Swisher. Morin fired his pistol to awaken Swisher, who got up upon hearing the gunshot. Morin proceeded to confront Swisher about “messing around with [his] girlfriend” and asked him where he had placed his money and drugs. Swisher responded that he did not know what Morin was talking about and gave Morin his wallet and car keys. Morin grabbed the items from Swisher and then shot him in the chest and stomach. Morin “paced back and forth” and then ran out of the apartment. Swisher did not survive the gunshot wounds he received from Morin and died on the floor of Villareal's apartment.
The authorities, with the assistance of a confidential informant, located Morin at an apartment later that day. Morin was apprehended by police following a brief “scuffle,” which occurred approximately forty to fifty feet away from the apartment. Officers entered the apartment from which Morin had emerged and conducted a protective sweep of the residence “to check for other combatants.” During the course of their protective sweep, officers observed drugs and drug paraphernalia in plain view as well as a cleaning crew inside the apartment. San Antonio Police Officer Daniel Molina prepared a warrant affidavit and secured a search warrant for the premises. Officers executed the warrant later that day and seized, among other items, clothing they believed Morin wore at the time of Swisher's death and multiple rounds of ammunition matching the caliber of the murder weapon.
In his ensuing murder trial, Morin's defense was that Morin postulates that Villarreal and Stephanie Ruiz framed him for Swisher's murder based upon discrepancies between their statements to police and their trial testimony. In an attempt to find evidence to support this theory, Morin sought an in camera to determine whether the informant possessed information concerning the names of other persons who might confirm his theory.
The trial court refused to hold such a hearing, and the Court of Appeals of Texas, San Antonio, agreed with this decision, finding that
The accused bears the threshold burden of demonstrating there is a reasonable probability the informer may give testimony necessary to a fair determination of the issue of guilt or innocence....To meet his burden, the accused must provide more than mere conjecture or speculation; he must show the informant's testimony would significantly aid the jury in determining guilt or innocence....The filing of a motion to disclose is insufficient to obtain a hearing, much less compel disclosure...However, because the defendant may not actually know the extent of the informant's involvement, he is only required to make a plausible showing of how the testimony may be important....
If the defendant meets this initial burden, the State must be given an opportunity to show, in camera, facts relevant to whether the informer can supply the alleged testimony....The trial court should order disclosure of the informant's identity if it finds a reasonable probability exists that the informer could give testimony necessary to a fair determination of guilt or innocence.
The Court of Appeals found that Morin failed to meet his threshold burden because
At the pretrial hearing on Morin's confidential informant motion, Officer Molina testified the informant did not participate in or witness Swisher's murder. He or she also did not observe Morin hide the murder weapon. Officer Molina confirmed the informant acquired his or her information from individuals who were not involved in the crime. He stated that the informant's information concerning the crime “had been passed along” to him or her during his or her telephone conversations with persons “other than the people that were involved in the crime."
Therefore, it was not plausible to believe that the informant's testimony would be important; instead, "Morin's argument amount[ed] to nothing more than supposition and conjecture unsupported by any evidence."