Opinion
No. 70-427
Decided June 23, 1971.
Witnesses — Identity of informer — Privilege of policeman not to disclose — May be invoked, when — Grand jury proceedings — Where inquiry is general in nature — Refusal of policeman to disclose identity — Not grounds for contempt order, when — Evidence.
The privilege to withhold from disclosure the identity of an informer may be invoked by a police officer in the course of a grand jury proceeding where the inquiry is not directed to the determination of the possible guilt of a specified person, but rather a general quest as to who might have committed a crime, and a police officer invoking the privilege in such circumstances may not be held in contempt.
APPEAL from the Court of Appeals for Montgomery County.
This appeal is from a judgment of the Court of Appeals for Montgomery County affirming a judgment of the Court of Common Pleas, finding that appellants were in contempt of the latter court.
Both of the appellants are police officers of the Jefferson Township Police Department. Each refused to answer questions propounded to them in a special grand jury investigation. Specifically, the officers refused to reveal the name of an informant. The refusal of the appellants to answer and their reasons were submitted to the Common Pleas Court. The court ordered both to answer the questions to the grand jury and they refused. The court found each of them to be in contempt of court and sentenced each to ninety days in the county jail and to pay a fine of five hundred dollars.
James W. McClain was arrested on November 26, 1968, for possession of marijuana and lewd films in his automobile. The only persons present at the arrest were McClain, Patrolman Tussey and a police cadet (Wantz) riding with the patrolman. The informer, known to be reliable by the police officers, described the make, color and license number of the suspect's automobile and stated that it would be in a certain area at a certain time with marijuana, lewd films and narcotic pills. The car was at the stated place and McClain was arrested. He denied knowledge of the contraband materials and the grand jury did not indict him.
Subsequently, another grand jury was impaneled, apparently to determine if someone other than McClain was responsible for the contraband materials in the McClain automobile. Upon the refusal of both of the appellants to follow the order of the Common Pleas Court and answer questions concerning the identity of the informant, the court held each appellant in contempt. Their refusal was based upon the principle that such information regarding the informer was privileged.
The matter is before us upon the allowance of a motion for leave to appeal and an appeal as of right.
Mr. Lee C. Falke, prosecuting attorney, and Mr. Leonard P. Zdara, for appellee.
Mr. Ted W. Rice, for appellants.
The first of two issues raised by appellants is of transcendent importance. That issue is whether a police officer can be compelled to disclose the identity of an informer in a grand jury proceeding where the inquiry is not directed to the determination of the possible guilt of a specified person, but is a general quest as to who might have committed a crime.
On the one side of the problem before us is the scope of the investigative power of the grand jury under R.C. 2939.08 to inquire of and present all offenses committed within the county. The historic traditions of the grand jury, and its extensive powers of investigation, cannot be stressed too much. Likewise, there is the corresponding duty of the citizenry to respond to grand jury subpoena and give testimony. However, the general proposition of state authority reposed in the grand jury is necessarily tempered by constitutional prohibitions and other exceptional circumstances. See Hale v. Henkel (1906), 201 U.S. 43; United States v. Bryan (1950), 339 U.S. 323; Blair v. United States (1919), 250 U.S. 273; Caldwell v. United States (C.C.A. 9, 1970), 434 F.2d 1081.
The constitutional prohibitions pose conflicts between First Amendment interests, particularly relating to freedom of the press, and grand jury authority. This First Amendment problem has been resolved by the court in Caldwell, supra, in which the Circuit Court of Appeals approved the following ruling of the District Court:
"`When the exercise of the grand jury power of testimonial compulsion so necessary to the effective functioning of the court may impinge upon or repress First Amendment rights of freedom of speech, press and association, which centuries of experience have found to be indispensable to the survival of a free society, such power shall not be exercised in a manner likely to do so until there has been a clear showing of a compelling and overriding national interest that cannot be served by any alternative means.'"
The appellate court agreed with the District Court that the First Amendment requires this qualified privilege.
Similarly, the authority of the grand jury to exercise testimonial compulsion is tempered by the qualified privilege of a police officer witness, in whom is reposed the identity of police informer, to refuse to disclose such identity. This qualified privilege is discussed in Roviaro v. United States (1957), 353 U.S. 53, as follows:
"What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. Scher v. United States, 305 U.S. 251, 254; Re Quarles, 158 U.S. 532; Vogel v. Cruaz, 110 U.S. 311, 316. The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials, and, by preserving their anonymity, encourages them to perform that obligation.
"The scope of the privilege is limited by its underlying purpose. Thus, where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged. Likewise, once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.
"A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action. Most of the federal cases involving this limitation on the scope of the informer's privilege have arisen where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause. In these cases the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication.
"We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors."
Later, in March 1967, the United States Supreme Court, in McCray v. Illinois (1967), 386 U.S. 300, held that federal officers need not disclose an informer's identity in applying for an arrest or search warrant.
Ohio has a long history of recognition of the so-called "informer privilege." In paragraph two of the syllabus in State v. Beck (1963), 175 Ohio St. 73, the principle was stated:
"It is not reversible error on the part of a trial court to refuse to order the disclosure of the identity of an informer, whose information led in part to the apprehension and arrest of an accused person, where such disclosure would not be helpful and beneficial to the accused in making a defense to a criminal charge lodged against him."
In the opinion in that case, the court said, at page 76:
"Did the court err in refusing to compel the disclosure of the name of the informer? Defendant contends that he was entitled to such disclosure to test the credibility of the informer and the reliability and sufficiency of the evidence on which the officers proceeded.
"As already noted, law-enforcement officers sometimes base a part of their activities on information supplied them by informers, and the only way to verify the reliability of such information is to make use thereof. Informers often frequent the vicinity where crime is planned, and the revelation of an informer's name would not only destroy his access to information concerning criminal activities but might also result in his sudden demise, thereby discouraging others from becoming informers.
"For many years, sound policy has dictated that the names of informers be kept secret. Only in an instance where an informer's identity would be beneficial and helpful to a defendant is there any basis for requiring disclosure. Here the officers acted on the information imparted by the informer plus additional knowledge already in their possession. The revelation of the name of the informer and the information supplied by him would not alter the fact of defendant's guilt. And a mere desire to test the credibility and reliability of the informer is hardly a compelling consideration in the circumstances narrated.
"This case is distinguishable from that of Roviaro v. United States, 353 U.S. 53, 1 L.Ed. 2d 639, 77 S. Ct. 623, where the informer not only gave information but took an active part personally in trapping and apprehending the offender. No such situation is evident here.
"Finally, nothing in the present case shows that the disclosure of the name of the informer would have been of any real value to defendant. He made no active defense, and by stipulation the case was submitted to the court solely on evidence furnished by the police and introduced at the hearing on the motion to suppress."
There is a paucity of cases in which the question of the "informer's privilege" has arisen in the context of investigation by the grand jury. The closest in factual pattern to our instant situation is Davis v. Circuit Court of Pulaski County (1958), 244 Ark. 142, 424 S.W.2d 149. The police officer witness in that case was adjudged to be in contempt when he refused to tell the grand jury the name of his informer who had evidence of certain gambling operations. The Supreme Court of Arkansas reversed the contempt order and reasoned that the privilege of a police officer in refusing to reveal the source of his information in criminal investigations was based on public policy and its availability depended upon the facts and circumstances of the particular case (citing Roviaro, supra, and McCray, supra).
Applying the available law to the facts in our present case, it is our determination these two appellants, adjudged contemners, were entitled to invoke the informer's privilege under the circumstances of this case where the grand jury inquiry was not directed to the guilt of a particular person and it does not appear from the record before us that such disclosure would be helpful and beneficial to an accused in making a defense to a criminal charge against him; and further, that they may not be compelled to disclose the identity of their informer to the grand jury.
Accordingly, the judgment of the Court of Appeals is reversed and the cause is remanded to the Common Pleas Court, with instructions that the judgment of contempt against each of these two appellants and the order directing each of them to disclose the name of their informer to the grand jury be vacated and set aside.
Judgment reversed.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, STERN and LEACH, JJ., concur.