Confidential informants (commonly referred to as a "CI") are encountered in criminal cases we handle in New Jersey almost every day. The common scenario is someone who has been arrested and decides to cooperate with police, making controlled buys from a particular "target". The goal of the police is to arrest bigger fish while maintaining the confidentiality of the informant. The law in NJ is extremely protective of the identity of a confidential informant since commonplace disclosure would discourage cooperation given the threat of retaliation against the informant. This being the case, it is often a highly beneficial strategy for the defense to fight for disclosure, particularly, where an informant continues to have value to the police. But when is this possible in New Jersey?
Both NJ Rule of Evidence 516 and N.J.S.A. 2A:84A-28 address when disclosure of the identity of an informant may be obtained. In this regard,
A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues.
New Jersey has basically carved out four scenarios where disclosure of the identity of a confidential informant may be had under these laws: (1) where the informant is a material and essential witness to a case; (2) where the confidential witness was a participant in the crime charged; (3) where the informant provided false information; or (4) where the informant's identity was previously disclosed. Where one of these circumstances exist, there is basis under NJ law to obtain disclosure of a CI. A motion seeking this relief can often prove highly beneficial to the defense and/or plea negotiations.