Rule 510 Identity of informer. (a) Rule of privilege. The government 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 law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.

(b) Who may claim. The privilege may be claimed by an appropriate representative of the government, regardless of whether the information was furnished to an officer of the government or of a state or subdivision thereof. The privilege may be claimed by an appropriate representative of a state or subdivision if the information was furnished to an officer thereof, except that in criminal cases the privilege shall not be allowed if the government objects.

(c) Exceptions.

(1) Voluntary disclosure; informer a witness. No privilege exists under this rule if the identity of the informer or the informer's interest in the subject matter of the informer's communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer's own action, or if the informer appears as a witness for the government.

(2) Testimony on merits. 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 the issue of guilt or innocence in a criminal case or of a material issue on the merits in a civil case to which the government is a party, and the government invokes the privilege, the judge shall give the government 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 judge may direct that testimony be taken if the judge finds that the matter cannot be resolved satisfactorily upon affidavit. If the judge finds that there is a reasonable probability that the informer can give the testimony, and the government elects not to disclose the informer's identity, the judge on motion of the defendant in a criminal case shall dismiss the charges to which the testimony would relate, and the judge may do so on the judge's own motion. In civil cases, the judge may make any order that justice requires. Evidence submitted to the judge 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 government. All counsel and parties shall be permitted to be present at every stage of proceedings under this paragraph except a showing in camera, at which no counsel or party shall be permitted to be present.

(3) Legality of obtaining evidence. If information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the judge is not satisfied that the information was received from an informer reasonably believed to be reliable or credible, the judge may require the identity of the informer to be disclosed. The judge shall, on request of the government, direct that the disclosure be made in camera. All counsel and parties concerned with the issue of legality shall be permitted to be present at every stage of proceedings under this paragraph except a disclosure in camera, at which no counsel or party shall be permitted to be present. If disclosure of the identity of the informer is made in camera, the record thereof 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 government. L 1980, c 164, pt of §1; gen ch 1985

RULE 510 COMMENTARY

This rule is identical with the U.S. Supreme Court proposal for Rule 510, see Rules of Evidence for U.S. Courts and Magistrates as promulgated by the U.S. Supreme Court, 28 App. U.S. Code Service, App. 6 (1975). The original Advisory Committee's Note says: "The rule recognizes the use of informers as an important aspect of law enforcement, whether the informer is a citizen who steps forward with information or a paid undercover agent. In either event, the basic importance of anonymity in the effective use of informers is apparent ... and the privilege of withholding their identity was well established at common law."

The intent of the rule is to balance the necessity for effective law enforcement machinery and the requirement of constitutional safeguards for the defendant. The rule restates existing law. In McCray v. Illinois, 386 U.S. 300 (1967), the court held that no constitutional requirement dictated disclosure of the identity of an informant for the sole purpose of challenging a finding of probable cause for issuance of a search or arrest warrant. See also United States v. Harris, 403 U.S. 573 (1971).

The Hawaii Supreme Court has ruled similarly. In State v. Delaney, 58 H. 19, 24, 563 P.2d 990, 994 (1977), the court held: "[N]either the federal nor state constitutions dictate disclosure of an informer's identity where the sole purpose is to challenge the finding of probable cause. A trial court may, in its discretion, require disclosure if it believes that the officer's testimony [regarding the informer] is inaccurate or untruthful." Relying on McCray v. Illinois, supra, and the previous decision in State v. Texeira, 50 H. 138, 433 P.2d 593 (1967), the Delaney court also held that the trial court properly disallowed questions that might indirectly disclose the informer's identity.

Subsection (c)(2) of this rule deals with the situation where the informant can supply testimony relevant to the merits of a criminal or civil case. In this situation disclosure is ordinarily required, see Roviaro v. United States, 353 U.S. 53 (1957), cf. Smith v. Illinois, 390 U.S. 129 (1968).

Case Notes

In camera hearing is mandatory prior to ordering disclosure of confidential informant's identity or ordering dismissal of indictment. 68 H. 653, 729 P.2d 385 (1986).

Where confidential informer was not going to be called to testify at trial as information informer provided was not the basis for any of the offenses charged against defendant, informer did not actively participate in any of offenses charged, and proof of defendant's guilt depended on circumstances at time warrant was executed and not on any information supplied by informer, subsection (c)(2) exception requiring disclosure of informant did not apply. 88 H. 396, 967 P.2d 228 (1998).

Where defendant filed motion for disclosure of identity of confidential informant, arguing that informant would be able to give testimony necessary to a fair determination of defendant's guilt and that the subsection (c)(2) exception therefore applied, trial court erred by presuming informer privilege applied and not determining whether an exception to the privilege applied. 88 H. 433, 967 P.2d 265 (1998).

Prior to granting the motion to suppress evidence, the circuit court should have reviewed, in camera, pursuant to subsection (c)(3), the sealed search warrant affidavit of detective that was the basis of the district court judge's determination of probable cause for issuance of the search warrant. 103 H. 191 (App.), 80 P.3d 1012 (2003).

Where trial court judge was satisfied that information received by officer from confidential informant was "reasonably believed to be reliable or credible", and judge did not believe that officer's testimony regarding confidential informant was "inaccurate or untruthful", judge did not err in not requiring disclosure of confidential informant's identity "for the sole purpose of challenging the finding of probable cause" for the issuance of a search warrant. 108 H. 361 (App.), 120 P.3d 260 (2005).

Discussed: 88 H. 363, 966 P.2d 1089 (1998).