§ RULE 505 GOVERNMENT INFORMER

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RULE 505. GOVERNMENT INFORMER

    (a) Definitions. As used in this rule:

        (1) “Government” means the government of the United States, of any state, or of any subdivision of any state.

        (2) “Informer” means any person who has furnished information relating to or assisting in an investigation of a possible violation of law to a law enforcement officer.

        (3) “Law enforcement officer” includes peace officers, prosecutors, a member of a legislative committee or its staff conducting an investigation and a member of a regulatory agency or its staff conducting an investigation.

    (b) General Rule of Privilege. The government has a privilege to refuse to disclose the identity of an informer.

    (c) Who May Claim the Privilege. The privilege may be claimed by counsel for the government or in the absence of counsel by another appropriate representative, regardless of whether the information was furnished to an officer of the United States government or a state or a subdivision thereof.

    (d) Exceptions: Voluntary Disclosure; Informer as Witness. No privilege exists under this rule if the identity of the informer or the informer's interest in the subject matter of the informer's 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.

        (1) Testimony on Merits. If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal case or of a material issue on the merits of a civil case whether or not the government is a party, and the government invokes a privilege, the judge may give the government an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply the testimony. The judge may make such orders respecting the procedures to be followed as are consistent with the spirit and purpose of this rule. If the judge finds there is reasonable probability that the informer can give the testimony, and the government elects not to disclose the informer's identity, the judge, on motion of the defendant in a criminal case, shall dismiss the charges to which the testimony would relate, and the judge may do so on the judge's own motion. In civil cases, the judge may make any order that justice requires. Evidence submitted to the judge may 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 government. All counsel and parties shall be permitted to be present at every stage of the proceedings under this subparagraph, except a showing in camera at which no counsel or party shall be permitted to be present.

        (2) Legality of Obtained Evidence. If information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the party attacking the legality of obtaining the evidence makes a substantial preliminary showing that the law enforcement officer intentionally or knowingly or with reckless disregard for truth falsely swore that the information was received from an informer reasonably believed to be reliable or credible and that probable cause does not exist absent the information furnished by the informer, the judge may require the identity of the informer to be disclosed. The judge shall, on request of the government, direct that the disclosure be made in camera. All counsel and parties concerned with the issue of legality shall be permitted to be present at every stage of the proceeding under this subparagraph, except a disclosure in camera, at which no counsel or parties shall be permitted to be present. If disclosure of the identity of the informer is made in camera, the record thereof  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 government.