Mass. R. Evid. 509

As amended through February 29, 2024

Section 509 - Identity of Informer, Surveillance Location, and Protected Witness Privileges

(a)Identity of Informer. The identity of persons supplying the government with information concerning the commission of a crime may be privileged in both civil and criminal cases. The existence and validity of the privilege is determined in two stages:

(1)Stage One. The judge must first determine whether the Commonwealth has properly asserted the privilege by showing that disclosure would endanger the informant or otherwise impede law enforcement efforts. If such a finding is made, the judge must determine whether the defendant has offered some evidence that the privilege should be set aside on grounds that it interferes with the defense.

(2)Stage Two. If the judge finds that the privilege has been properly asserted and that, if recognized, it would interfere with the defense, the judge must undertake a balancing test in order to determine whether disclosure of the informant's identity and information is sufficiently relevant and helpful to the defense. The judge must consider the crime charged, the possible defenses, the possible significance of the privileged testimony, and other relevant factors in balancing the public interest in the free flow of information and the individual's interest in preparing a defense. There is no privilege under this subsection when the identity of the informer has been disclosed by the government or by the informer, or the court determines that it is otherwise known.

(b)Surveillance Location. The exact location, such as the location of a police observation post, used for surveillance is privileged, except there is no privilege under this subsection when a defendant shows that revealing the exact surveillance location would provide evidence needed to fairly present the defendant's case to the jury.

(c)Protected Witness. The identity and location of a protected witness and any other matter concerning a protected witness or the Commonwealth's witness protection program is privileged in both civil and criminal cases, except there is no privilege as to the identity and location of the protected witness under this subsection when

(1) the prosecuting officer agrees to a disclosure after balancing the danger posed to the protected witness, the detriment it may cause to the program, and the benefit it may afford to the public or the person seeking discovery, or

(2) disclosure is at the request of a local, State, or Federal law enforcement officer or is in compliance with a court order in circumstances in which the protected witness is under criminal investigation for, arrested for, or charged with a felony.

(d)Who May Claim. These privileges may be claimed by the government.

Mass. Guid. Evid. 509

This Guide was last amended effective 1/1/2023.

Subsection (a). This subsection is derived from Commonwealth v. Bonnett, 472 Mass. 827, 846-851 (2015), and Roviaro v. United States, 353 U.S. 53, 59-62 (1957); the last sentence is derived from Commonwealth v. Congdon, 265 Mass. 166, 175 (1928), and Pihl v. Morris, 319 Mass. 577, 579 (1946). See also Commonwealth v. Dias, 451 Mass. 463, 469 (2008) ("part of the balance [between the defendant's right to present a defense and the public interest in protecting the free flow of information] involves weighing the potential danger to the informant").

The showing that must be made by the defendant in Stage One in order to trigger the balancing test as part of Stage Two is "relatively undemanding" because "the details concerning privileged information sought by the defendant ordinarily are not in his or her possession." Bonnett, 472 Mass. at 847. In determining whether disclosure would be relevant and helpful to the defense, judges must consider whether "knowledge of the informant's identity can offer substantial aid to the defense even if the informant himself cannot provide testimony sufficiently relevant and reliable to be admitted at trial." Id. at 849.

"[T]he government is not required to disclose the identity of an informant who is a mere tipster and not an active participant in the offense charged." Commonwealth v. Brzezinski, 405 Mass. 401, 408 (1989), quoting United States v. Alonzo , 571 F.2d 1384, 1387 (5th Cir. 1978), cert. denied, 439 U.S. 847 (1978). Accord McCray v. Illinois, 386 U.S. 300, 308-309 (1967). See also Commonwealth v. Barry, 481 Mass. 388, 409-411 (2019) (unsuccessful challenge to assertion of privilege where confidential informant was not percipient witness and merely relayed inadmissible, immaterial "word on the street" information about the crime); Commonwealth v. McKay, 23 Mass. App. Ct. 966, 967(1987) (trial judge was not required to order disclosure of the identity of two inmates who informed on the defendant, although their statements were disclosed and they were not called as witnesses at trial by the Commonwealth). When the informant "is an active participant in the alleged crime or the only nongovernment witness, disclosure [of the identity of the informant] usually has been ordered." Commonwealth v. Lugo, 406 Mass. 565, 572 (1990).

The privilege may expire. The public records statute, G. L. c. 66, § 10, provides an independent right of access to records and documents that were covered by the privilege if the reason for the privilege no longer exists. See, e.g., District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511-512 (1995) (discussing Bougas v. Chief of Police of Lexington, 371 Mass. 59, 66 [1976], and WBZ-TV4 v. District Attorney for the Suffolk Dist., 408 Mass. 595, 602-604 [1990]).

Dual Sovereignty. In general, a defendant who seeks exculpatory information about a Federal informant must follow the prescribed Federal procedure for requesting informant information. Commonwealth v. Ayala, 481 Mass. 46, 56-57 (2018). When the defendant seeks an order to have the Commonwealth obtain informant information from the Federal government, the judge should consider "(i) the potential unfairness to the defendant; (ii) the defendant's lack of access to evidence; (iii) the burden on the prosecutor of obtaining the evidence; and (iv) the degree of cooperation between State and Federal authorities, both in general and in the particular case." Commonwealth v. Donahue, 396 Mass. 590, 599 (1986). The judge may not simply rely on the independent sovereignty of the United States as justification for failing to order disclosure of the informant's identity if disclosure is otherwise appropriate under this subsection. Commonwealth v. Bonnett, 472 Mass. 827, 845 (2015). The remedy for the Commonwealth's failure to comply with an order of disclosure in such a case is dismissal of the criminal charge. Id.

Challenges to the Sufficiency of an Affidavit. When a defendant challenges the sufficiency of an affidavit in support of a search warrant, the court's review "begins and ends with the 'four corners of the affidavit.'" Commonwealth v. O'Day, 440 Mass. 296, 297 (2003), quoting Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428(1995). The defendant has the burden of establishing by a preponderance of the evidence that the affidavit contains false statements. See Commonwealth v. Nine Hundred & Ninety-two Dollars, 383 Mass. 764, 767, 769 (1981). Intentionally or recklessly omitted material may satisfy the defendant's burden. See Commonwealth v. Long, 454 Mass. 542, 552 (2009). A negligent misrepresentation by the affiant is not a basis for relief. See Commonwealth v. Amral, 407 Mass. 511, 520 (1990); Nine Hundred & Ninety-two Dollars, 383 Mass. at 771-772. If the affidavit contains false statements, the court must simply assess whether it establishes probable cause without reliance on the false statements. See Amral, 407 Mass. at 519. Cf. Nine Hundred & Ninety-two Dollars, 383 Mass. at 768 (leaving open whether suppression of evidence should be ordered under Article 14 of the Massachusetts Declaration of Rights when there has been a deliberately false, though nonmaterial, misstatement by the affiant).

Amral Hearing. In keeping with the "four corners rule," the court should not take any action simply based on an allegation that the affidavit contains false information. Only if the defendant makes an initial showing that "cast[s] a reasonable doubt on the veracity of material representations made by the affiant concerning a confidential informant" is the court required to act (citations omitted). Commonwealth v. Youngworth, 55 Mass. App. Ct. 30, 38(2002), cert. denied, 538 U.S. 1064 (2003). The first step is to conduct an in camera hearing. See Commonwealth v. Ramirez, 416 Mass. 41, 53-54 (1993). The informant may be ordered to appear and submit to questions by the court at this " Amral hearing" however, the identity of the informant is not revealed. The court has discretion to permit the prosecutor to attend this hearing. Neither the defendant nor defense counsel is permitted to attend. See Amral, 407 Mass. at 525. If the court is satisfied that the informant exists and that the defendant's allegations of false statements are not substantiated, there is no further inquiry. On the other hand, if the defendant makes "a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit," the court must take the next step (citation omitted). Youngworth, 55 Mass. App. Ct. at 37-38. In this situation, the defendant is entitled to an evidentiary hearing and to the disclosure of the identity of the informant. The burden of proof at this hearing rests with the defendant to establish that the affiant presented the magistrate with false information purposely or with reckless disregard for its truth. If it is shown that an affidavit in support of a warrant contains false information that was material to the determination of probable cause, suppression of the evidence is required. See Franks v. Delaware, 438 U.S. 154, 155-156 (1978); Amral, 407 Mass. at 519-520.

Entrapment Defense. Where a defendant seeks disclosure of otherwise privileged information to support an entrapment defense, the question is whether the defense has been "appropriately raised . . . by the introduction of some evidence of inducement by a government agent or one acting at his direction." Commonwealth v. Madigan , 449 Mass. 702, 707 (2007), quoting Commonwealth v. Miller, 361 Mass. 644, 651-652 (1972). "The types of conduct that possess the indicia of inducement include 'aggressive persuasion, coercive encouragement, lengthy negotiations, pleading or arguing with the defendant, repeated or persistent solicitation, persuasion, importuning, and playing on sympathy or other emotion.'" Id. at 708, quoting Commonwealth v. Tracy, 416 Mass. 528, 536 (1993). See Commonwealth v. Elias, 463 Mass. 1015, 1016 (2012) (where defendant's affidavit states facts sufficient to raise an entrapment defense if informant were an individual named in the affidavit, trial court may require the Commonwealth to affirm whether informant is that individual); Commonwealth v. Mello, 453 Mass. 760, 765 (2009) (reversing trial judge's order that Commonwealth must disclose the identity of an unnamed informant because the defendant's proffer showed no more than a solicitation; duty to disclose identity of an undercover police officer or unnamed informant does not carry over to a second unnamed informant unless the second informant participated in the first informant's inducement).

In Camera Hearing. Unless the relevancy and materiality of the information sought is readily apparent, the party seeking access to the information has the burden to provide the trial judge with the basis for ordering the disclosure. Commonwealth v. Swenson, 368 Mass. 268, 276 (1975). When it is not clear from the record whether disclosure of the informant's identity is required, the court has discretion to hold an in camera hearing to assist in making that determination. Commonwealth v. Dias, 451 Mass. 463, 472 n.15 (2008) ("The nature of the in camera hearing is left to the judge."). In exceptional circumstances, a motion for the disclosure of the identity of an informant may be based on an ex parte affidavit in order to safeguard the defendant's privilege against selfincrimination. However, in such a case, before any order of disclosure is made, the Commonwealth must be given a summary or redacted version of the defendant's affidavit and an opportunity to oppose the defendant's motion. Commonwealth v. Shaughessy, 455 Mass. 346, 357-358 (2009).

Subsection (b). This subsection is derived from Commonwealth v. Lugo, 406 Mass. 565, 570-574 (1990), and Commonwealth v. Rios, 412 Mass. 208, 210-213 (1992). It would be a violation of the defendant's right to confrontation to preserve the confidentiality of a surveillance site by permitting the trier of fact to hear testimony from a witness outside of a defendant's presence. Rios, 412 Mass. at 212-213.

Subsection (c). This subsection is derived from St. 2006, c. 48, § 1, inserting G. L. c. 263A, entitled "Witness Protection in Criminal Matters." As for the right of the defense to have access to a Commonwealth witness, see Commonwealth v. Balliro , 349 Mass. 505, 515-518 (1965).

Subsection (d). This subsection is derived from Commonwealth v. Johnson, 365 Mass. 534, 544 (1974).