N.M. R. Evid. 11-510
When such a motion is made, the court will provide the United States, the state, or the subdivision thereof an opportunity to present evidence for an in camera review addressing whether the informant can, in fact, supply such testimony.
N.M. R. Evid. 11-510
ANNOTATIONS The 2013 amendment, approved by Supreme Court Order No. 13-8300-025, effective December 31, 2013, clarified the language of the rule; defined "informer" and "disclosure"; deleted former Paragraph A, which defined the scope of the privilege to refuse to disclose the identity of an informer; added current Paragraphs A and B; in Paragraph C, in the title, added "the privilege", after "United States", deleted "or", and after "subdivision thereof", deleted "except that in criminal cases the privilege shall not be allowed if the state objects"; in Paragraph D, deleted former Subparagraph (1), which eliminated the privilege if the identity of the informer was disclosed to those who would resent the informer's communication and added current Subparagraph (1); deleted former Subparagraph (2), which provided the procedure for determining whether an informer should testify, and added current Subparagraph (2); deleted former Subparagraph (3), which provided the procedure for determining whether the identify of an informer should be disclosed when the legality of the means by which the informer obtained evidence is in question, and added current Subparagraph (3); and added Subparagraph (4). The 1993 amendment, effective December 1, 1993, substituted "court" for "judge" and made gender neutral changes throughout the rule.
For sealing of court records, see Rule 1-079 NMRA. Scope of review. - Only concern of court upon appellate review of trial court's determination under this rule is to insure that the lower court did not abuse its discretion. State v. Robinson, 1976-NMSC-019, 89 N.M. 199, 549 P.2d 277. Rule extends only to a determination of when informer's identity will be required by the court to be disclosed. State v. Sandoval, 1981-NMSC-083, 96 N.M. 506, 632 P.2d 741. The language of this rule clearly indicates that it applies only when the issue of the identity of an informer arises at a trial on the merits, when a trial judge can require the disclosure. McCormick v. Francoeur, 1983-NMSC-077, 100 N.M. 560, 673 P.2d 1293. Rule is a recognition by the judiciary that certain privileges are necessary to aid law enforcement officers and the legislature in obtaining information through investigations and hearings without having to be concerned with being subpoenaed into court or having to disclose sources of information. State ex rel. Attorney Gen. v. First Jud. Dist. Ct., 1981 -NMSC-053, 96 N.M. 254, 629 P.2d 330. Disclosure of identity. - To come within the exception of Subparagraph (2) of Paragraph C, a defendant must show that disclosure of the identity of an informer would help his case, that it would help him more than hurt the police, and that he would be prejudiced by the lack of an in camera hearing concerning the identification. State v. Hernandez, 1986-NMCA-040, 104 N.M. 268, 720 P.2d 303. Disclosure decision requires balancing of interests. - Question of disclosure of informer calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense, and whether balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, possible defenses, possible significance of informer's testimony and other relevant factors. State v. Robinson, 1976-NMSC-019, 89 N.M. 199, 549 P.2d 277. To require state to reveal informer's identity in every instance where that person has witnessed and helped arrange a drug transaction, without first determining whether informer's testimony will be at all relevant or necessary to the defense, would unreasonably cripple state's efforts at drug law enforcement. State v. Robinson, 1976-NMSC-019, 89 N.M. 199, 549 P.2d 277. Refusal to require disclosure proper. - There was no abuse of discretion in trial court's refusal to require the state to disclose the identity of a confidential informant pursuant to Subparagraph (2) of Paragraph C of this rule where the trial court properly concluded that the informant, who was not a witness to the defendant's possession of a controlled substance but instead conveyed information that defendant would be engaging in illicit drug activity, did not possess information relevant to the preparation of defendant's defense or that would exculpate defendant. State v. Campos, 1991-NMCA-119, 113 N.M. 421, 827 P.2d 136, rev'd in part on other grounds, 1994-NMSC-012, 117 N.M. 155, 870 P.2d 117. The trial court did not abuse its discretion in refusing to order disclosure of a confidential informant under Subparagraph (3) of Paragraph C. The evidence before the trial court was sufficient to enable it to properly balance defendant's right to a fair trial and the state's interest in protecting its availability of information. State v. Campos, 1991-NMCA-119, 113 N.M. 421, 827 P.2d 136, rev'd in part on other grounds, 1994-NMSC-012, 117 N.M. 155, 870 P.2d 117. Since the crime charged was not based on a transaction witnessed by the confidential informant but based upon evidence found upon execution of the search warrant, there was no abuse of discretion in denying the defendant's motion to order disclosure of the identity of the informant, or to hold an in camera hearing to evaluate the request for disclosure. State v. Chandler, 1995-NMCA-033, 119 N.M. 727, 895 P.2d 249. Rule provides systematic method for balancing state's interest in protecting flow of information against individual's right to prepare his defense by giving trial court opportunity to determine through in camera hearing whether identity of informer must be disclosed or not. Where it appears to trial judge from the evidence that informer's testimony will not be relevant and helpful to accused's defense or necessary to fair determination of issue of guilt or innocence, then identity of informer can remain undisclosed so that that person will not be exposed unnecessarily to the highly dangerous position of being a known informant. State v. Robinson, 1976-NMSC-019, 89 N.M. 199, 549 P.2d 277; State v. Sandoval, 1981-NMSC-083, 96 N.M. 506, 632 P.2d 741. Magistrate judge at a preliminary hearing does not have authority to require the state to reveal the identity of a confidential informant pursuant to this rule of evidence. McCormick v. Francoeur, 1983-NMSC-077, 100 N.M. 560, 673 P.2d 1293. Privilege extends only to officer furnished information by person in criminal investigation. - It is only where information relating to or assisting in an investigation of a possible violation of law is furnished to the attorney general as a law enforcement officer that he would have a privilege under this rule to refuse to disclose the identity of the person who furnished the information. State ex rel. Attorney Gen. v. First Jud. Dist. Ct., 1981 -NMSC-053, 96 N.M. 254, 629 P.2d 330. To invoke an in camera hearing under Rule 11-501 NMRA, the defendant is not required to specifically move for such a hearing; however, he is required to fairly invoke a ruling by the trial court as to whether such a hearing should be held. State v. Martinez, 1982-NMCA-005, 97 N.M. 316, 639 P.2d 603. In camera hearing, sua sponte, not required whenever justified. - The trial court is not required to conduct an in camera hearing under Subparagraph (2) of Paragraph C, sua sponte, whenever such a hearing can be justified by the evidence. State v. Martinez, 1982-NMCA-005, 97 N.M. 316, 639 P.2d 603. Items submitted for in camera inspection are not public records. - Physical evidence, documents, wiretaps and video recordings which are not marked as exhibits or received into evidence are not public records. Neither are items submitted for court perusal for in camera inspection. State ex rel. Bingaman v. Brennan, 1982-NMSC-059, 98 N.M. 109, 645 P.2d 982. Informer's testimony must be relevant to defense or necessary for fairness. - Before exception in Subparagraph (2) of Paragraph C applies, it must appear from the evidence in the case or from other showing by a party that an informer can give testimony either relevant and helpful to the defense or necessary to a fair determination of guilt or innocence. Where issue at trial went to defendant's constructive possession of heroin and evidence was that informer knew that defendant's wife had concealed "package" in patrol car and knew where and when it had been concealed, but it did not appear from the evidence that the informer would be able to give testimony helpful to defense of defendant, then defendant had not made showing sufficient to invoke Subparagraph (2) of Paragraph C. State v. Bauske, 1974-NMCA-078, 86 N.M. 484, 525 P.2d 411. Where informant in testimony in in camera hearing neither contradicted nor varied police reports and there was no showing in any court involved in the matter that informant's disclosure would be relevant or helpful to the defense or necessary to a fair determination of guilt or innocence, then trial court's refusal to disclose identity of informer was not an abuse of discretion. State v. Robinson, 1976-NMSC-019, 89 N.M. 199, 549 P.2d 277. Court conducts in camera hearing to determine whether eyewitness' identity subject to disclosure. - Where an informer's testimony, pursuant to Paragraph C, discloses the identity of a possible eyewitness to a crime, the trial court, under the disclosure requirements of Rules 5-501 and 5-505 NMRA should conduct an in camera hearing to determine, first, whether the possible eyewitness would be able to give testimony that is relevant and helpful to the defense of the accused or is necessary to a fair determination of the defendant's guilt or innocence, and, second, whether disclosure would subject the possible eyewitness to a substantial risk of harm outweighing any usefulness of the disclosure to defense counsel. State v. Gallegos, 1981-NMCA-047, 96 N.M. 54, 627 P.2d 1253, overruled on other grounds, State v. Martin, 1984-NMSC-077, 101 N.M. 595, 686 P.2d 937. On showing of necessity, hearing must be held. - Once the necessity of an in camera hearing is shown, it must be held; the trial court may not dismiss a criminal information because the state, attempting to protect its witness, did not specifically request the in camera hearing. State v. Perez, 1985-NMCA-041, 102 N.M. 663, 699 P.2d 136. Inadequate showing for in camera hearing. - District court did not abuse its discretion in finding that defendant did not make a showing adequate to require an in camera hearing regarding disclosure of a confidential informant, where defense counsel did not explain how the informant could assist in establishing that the individual who delivered drugs to defendant was an agent of the state who had entrapped defendant. State v. Vasquez, 1990-NMCA-020, 109 N.M. 720, 790 P.2d 517. Court did not abuse discretion by not holding in camera interview. State v. Lovato, 1993-NMCA-163, 117 N.M. 68, 868 P.2d 1293. Relevancy of informer's testimony shown. - The defendant's claim that an informer was an active participant - an arranger and participant in the narcotics sales meets the test of relevancy in Subparagraph (2) of Paragraph C. State v. Beck, 1982-NMCA-004, 97 N.M. 312, 639 P.2d 599. Response from prosecutor required to determine whether claim contested. - The defendant's specific claim that an informer was the arranger and participant in alleged narcotic sales cannot be characterized as an unsupported suggestion and the trial court should require a response from the prosecutor in order to learn whether defendant's claim is contested. State v. Beck, 1982-NMCA-004, 97 N.M. 312, 639 P.2d 599. Necessity of informer's testimony shown. - The defendant's claim, that, apart from the defendant, an informer is the only nonpolice witness, uncontradicted by the prosecutor, is a sufficient showing of the necessity of the informer's testimony for a fair determination of guilt or innocence. State v. Beck, 1982-NMCA-004, 97 N.M. 312, 639 P.2d 599. Value of informer's testimony not shown. - Neither disclosure of an informer's identity nor an in camera hearing were required under Paragraph C(2) where the informer's information was not directly exculpatory evidence and the informer was not an active participant or eyewitness to the crime. State v. Rojo, 1999-NMSC-001, 126 N.M. 438, 971 P.2d 829. Cross-examination of informant not barred where no privilege. - Whether an informant's presence at a drug transaction waived her privilege or whether the privilege never applied because defendant always knew the identity of the confidential informant, this rule was not a ground for the trial court's denial of defendant's right to cross-examine the informant as to her relationship with the police, since no privilege existed going into trial. State v. Chambers, 1986-NMCA-006, 103 N.M. 784, 714 P.2d 588. State must account for nonappearance of informer. - Where defendant's demand under Subparagraph (2) of Paragraph C was timely made approximately four months prior to trial and state could not produce informer for in camera hearing ordered by court, the state was required to satisfy court as to why it could not reasonably be expected to produce the informer and as to state's diligence as regards his disappearance. Uncontradicted evidence produced by state detailing efforts to locate informer after trial court's order, in addition to officer's testimony that he had made many prior efforts for other cases, was sufficient to sustain ruling of trial court that state had made diligent search and inquiry to ascertain whereabouts of informer; trial court did not err in refusing to dismiss indictment because of state's inability to produce the informer. State v. Carrillo, 1975-NMCA-103, 88 N.M. 236, 539 P.2d 626. Defendant entitled to new trial if informer's testimony relevant. - Where defendant's case rested on misidentification by police officer and informer supposedly knew man who sold heroin to officer, defendant, although not entitled to disclosure of informant's identity, was entitled to an in camera hearing to determine relevance of informer's testimony and to a new trial if trial court in that hearing determined that informant's testimony was relevant. State v. Debarry, 1974-NMCA-117, 86 N.M. 742, 527 P.2d 505. After identity disclosed, government must show reasonable attempt to locate informer. - After the disclosure of an informer's identity, where a court has determined that such disclosure is necessary under this rule, the government must show only that it made reasonable attempts to acquire the information needed to locate the informer and that it disclosed all the information it possesses which is useful in locating the informer; a failure to make such a showing would justify dismissal of the charges. State v. Sandoval, 1981-NMSC-083, 96 N.M. 506, 632 P.2d 741. Informant need not disclose current alias. - A trial court's ruling that an informant need not disclose his current alias does not violate Subparagraph (1) of Paragraph C where the informant's true identity and background are disclosed. State v. Hinojos, 1980-NMCA-079, 95 N.M. 659, 625 P.2d 588. Belief of receiver, not informer, examined. - Under Subparagraph (3) of Paragraph C, the trial court examines the reasonable belief of the person receiving the information from the informer; the trial court does not examine the reliability of the informer. State v. Cervantes, 1979-NMCA-029, 92 N.M. 643, 593 P.2d 478, cert. denied, 92 N.M. 621, 593 P.2d 62. Subparagraph (3) of Paragraph C applies in civil action for defamation. Ammerman v. Hubbard Broadcasting, Inc., 1977-NMCA-127, 91 N.M. 250, 572 P.2d 1258, cert. denied, 91 N.M. 249, 572 P.2d 1257, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978). Law reviews. - For note, "Judicial Discretion to Withhold Disclosure of Informant's Identity: State v. Robinson," see 7 N.M.L. Rev. 241 (1977). For article, "Criminal Procedure," see 12 N.M.L. Rev. 271 (1982). For article, "Evidence," see 12 N.M.L. Rev. 379 (1982). For note, "Criminal Law - New Mexico Expands the Entrapment Defense: Baca v. State," 20 N.M.L. Rev. 55 (1990). Am. Jur. 2d, A.L.R. and C.J.S. references. - 81 Am. Jur. 2d Witnesses §§ 532, 536. Informer, prosecution's privilege against disclosure of identity of, 76 A.L.R.2d 262. 97 C.J.S. Witnesses § 265.