Del. R. Evid. 509

As amended through December 15, 2023

Rule 509 - Identity of Informer

(a)Rule of privilege.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.

(b)Who may claim.The privilege may be claimed by an appropriate representative of the public entity to which the information was furnished.

(c) Exceptions.

(1)Voluntary disclosure; informer a witness. No privilege exists under this rule if the identity of the informer or his interest in the subject matter of his 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 relevant issue. If it appears in a criminal case that an informer may be able to give testimony which would materially aid the defense, or in a civil case which would be relevant to a fair determination of a material issue on the merits of a case in which a public entity is a party, and the informed 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 there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose his identity, in criminal cases the court on motion of the defendant or on its own motion shall grant appropriate relief, which may include 1 or more of the following: Requiring the prosecuting attorney to comply, granting the defendant additional time or a continuance, relieving the defendant from making disclosures otherwise required of him, prohibiting the prosecuting attorney from introducing specified evidence, and dismissing charges. In civil cases, the court may make any order the interests of justice require. 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 informed public entity. All counsel and parties are permitted to be present at every stage of proceedings under this subdivision except a showing in camera at which no counsel or party shall have the right to be present.

Del. R. Evid. 509

Amended November 28, 2017, effective 1/1/2018.

Comment

Except for Rule 509(c)(2) this rule tracks U.R.E. 509 which is based on draft of F.R.E. 510. See comment to Rule 501.

In Rule 509(c)(2) the words "have the right" were substituted for the words "be permitted" in the last line to indicate that the presence of counsel or parties at an in camera hearing is discretionary with the court. The first sentence was also rewritten to conform this rule to State v. Flowers, Del. Super., 316 A.2d 564 (1973).

Proceedings before a grand jury are deemed to be covered by this rule.

For prior Delaware cases illustrating the law covered by this rule, see Preston v. State, Del. Supr., 338 A.2d 562 (1975); Riley v. State, Del. Supr., 249 A.2d 863 (1969), cert. denied, 395 U.S. 947, 89 S. Ct. 2016, 23 L. Ed. 2d 465 (1969).

This rule follows the rule set forth in State v. Flowers, Del. Super., 316 A.2d

564 (1973).