KYLER NIELSON v. STATE OF UTAH
No. 20140745
Supreme Court of the State of Utah
November 18, 2016
2016 UT 52
This оpinion is subject to revision before final publication in the Pacific Reporter
2016 UT 52
IN THE
SUPREME COURT OF THE STATE OF UTAH
KYLER NIELSEN,
Appellant,
v.
STATE OF UTAH,
Appellee.
No. 20140745
Filed November 18, 2016
On Certification from the Utah Court of Appeals
Fourth District, Provo Dep’t
The Honorable David N. Mortensen
No. 131402457
Attorneys:
Margaret P. Lindsay, Douglas J. Thompson, Provo,
for appellant
Sean D. Reyes, Att’y Gen., John J. Nielsen, Salt Lake City,
for appellee
JUSTICE DURHAM authored the opinion of the court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PEARCE JOINED.
INTRODUCTION
¶1 In this criminal case, the State claimed a privilege under rule 505 of the Utah Rules of Evidence to refuse to disclose the identity of a confidential informant. Rule 505 provides that if the State еxercises this privilege in a case where the district court determines that there is a reasonable probability that the informant can give testimony necessary to a fair determination of the issue of the defendant’s guilt or innocence, the court must dismiss the charges assоciated with this testimony.
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Opinion of the Court
¶2 We must decide in this appeal whether the district court applied the correct legal standard when it ruled that rule 505 did not require the dismissal of the charges against the defendant. Relying upon an opinion of this court that applied a prior version of the current rule 505, the district court used a three-factor balancing test. But the defendant argues that rule 505 required the court to consider only one factor: whether the confidential informant could provide testimony necessary to his defense.
¶3 We agree with the defendаnt that the district court applied the wrong legal test. The plain language of rule 505 requires the district court to consider only the necessity of the confidential informant’s likely testimony to a fair determination of the guilt or innocence of the defendant. We therefore reverse and remand for further proceedings.
BACKGROUND
¶4 A confidential informant told a Utah County officer that M.G. was selling the drug ecstasy and that she had plans to travel to a rave with friends. Based on this information, officers pulled over a vehicle driven by M.G. Kyler Nielsen was one of four passengers in the vehicle. Officers searched the vehicle and discovered ecstasy pills in the center console, in a cargo compartment behind one of the seats, and in a backpack located in the rear passenger compartment. Mr. Nielsen admitted that the backpack was his, but claimed that the ecstasy belonged to M.G. The State charged Mr. Nielsen with possession of a controlled substance.
¶5 Mr. Nielsen moved to compel the State to reveal the confidential informant’s name, address, and teleрhone number, as well as other information about the informant. Invoking rule 505 of the Utah Rules of Evidence, the State opposed the motion to compel. Rule 505 grants the State the “privilege to refuse to disclose the identity of an informer,” unless the informer’s identity has already bеen disclosed or the informer appears as a government witness.
¶6 The district court elected under
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Opinion of the Court
refused to participate in the interview because M.G. had threatened on social media that the informant would be hurt if discovered.
¶7 After the informant refused to appear, the district court concluded that rule 505 did not require it to dismiss the charges agаinst Mr. Nielsen. Relying upon this court’s opinions in State v. Forshee, 611 P.2d 1222 (Utah 1980) and State v. Nielsen, 727 P.2d 188 (Utah 1986), the court applied a three-factor balancing test, weighing (1) “the defendant’s need for disclosure in order to prepare a defense,” (2) “the potential safety hazards to the persons involved,” and (3) “the public interest in prеserving the flow of information from informants.” Nielsen, 727 P.2d at 193. Considering the “totality of the circumstances” under these three factors, the district court concluded that rule 505 did not require a dismissal.
¶8 Mr. Nielsen went to trial and was convicted of possession of a controlled substance. He appeals, arguing that the district court’s rule 505 ruling was erroneous.
STANDARD OF REVIEW
¶9 In this appeal, we must decide whether the district court applied the correct legal standard when it found that rule 505 did not require it to dismiss the charges against Mr. Nielsen.1 “We review the district court’s decision de novo, according no deference to its legal determination.” State v. Steinly, 2015 UT 15, ¶ 7, 345 P.3d 1182.
ANALYSIS
¶10 The confidential informant privilege was first recognized in Utah in 1971, when this court adopted rule 36 of the Utah Rules of Evidence. This rule stated that “[a] witness ha[d] a privilege to refuse to disclose the identity of [an informant] . . . unless . . . disclosurе of his identity is essential to assure a fair determination of the issues.”
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involved, the public interest in prоtecting the flow of information from informants, and the defendant’s right to prepare his defense.” Forshee, 611 P.2d at 1225.
¶11 In 1983, we removed rule 36 and all other privilege rules from the Utah Rules of Evidence. We adopted a new rule stating that “[p]rivilege is governed by the common law, except as modifiеd by statute or court rule.”
¶12 The common-law privilege period ended in 1992, when this court amended rule 501 to state that “no person shall have a privilege to withhold evidence except as provided by these or other rules adopted by the Utah Supreme Court or by existing statutory provisions not in conflict with them.”
¶13 The current version of rule 505 gives the State “а privilege to refuse to disclose the identity of an informer.”
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Opinion of the Court
¶14 Rule 505 places a single condition on the unfettered exercise of the confidential informant privilege: the absence of a reasonable probability that the confidential informant can give testimony essential tо a determination of the defendant’s guilt or innocence. Mr. Nielsen argues that district courts should follow the plain language of rule 505 and evaluate only whether this condition has been met. Thus, he asserts that the district court applied the wrong legal standard when it employed thе Forshee three-factor balancing test to determine whether it had an obligation to dismiss the charges against him.
¶15 The State, on the other hand, argues that the trial court applied the correct legal standard when it used the Forshee balancing test. It contends that, in addition to the plain language of rule 505, courts should also weigh “potential hazards to the safety of parties involved” and “the public interest in protecting the flow of information from informants” when deciding whether the rule requires dismissal. See Forshee, 611 P.2d at 1225. The State argues that although Forshee interpreted a previous version of the confidential informаnt rule, it remains binding authority that controls the proper interpretation of rule 505.
¶16 The State first contends that the advisory committee note to rule 505 incorporates the Forshee balancing test. The language cited by the State, however, provides no guidance on this question. The advisory committee note states:
Rule 505 incorporates the concept reflected in Roviaro v. United States, 353 U.S. 53, 1 L.Ed.2d 639, 77 S.Ct. 623 (1957), that the government has a “privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law.” The Utah Supreme Court adopted the Roviaro approach in State v. Forshee, 611 P.2d 1222 (Utah 1980).
This portion of the note merely traces some of the history of the confidential informant privilege. It does not counteract the plain language of rule 505 that describes the conditions under which the State’s use of the privilege requires a dismissal.
¶17 In fаct, another section of the advisory committee note confirms that the relevant test is located in the rule itself. The note later states: “Subparagraph (d)(1) sets forth the test to be applied by the court in determining whether to allow the privilege or to require the government to elect to disclose the identity of the informer or to
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dismiss, in a criminal case.” Id. After the advisory committee note was written, rule 505 was revised such that the language from former subparagraph (d)(1) was renumbered as subparagraph (e). Compare
¶18 Next, the State argues that because some of the language from the former rule 36 appears in the current rule 505, the Forshee balancing test was “transplanted” into the new rule. In support of this contentiоn, the State cites the interpretive rule of thumb that “[w]hen a word or phrase is ‘transplanted from another legal source, whether the common law or other legislation,
¶19 The State’s argument is flawed. Using Forshee as a source of meaning for
¶20 We conclude that Forshee, while purporting to rely on Roviaro in adding safety and public interest factors to its balancing test, actually strayed from Roviaro’s holding and standard. The court in Roviaro clearly says:
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
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Opinion of the Court
helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.
353 U.S. at 60–61. Even the dissent in Roviaro agreed that “[o]f course where enforcement of a non-disclosure policy deprives an accused of a fair trial it must either be relaxed or the prosecution must be foregone.” Id. at 67 (Clark, J., dissenting).
¶21 Forshee thus misinterpreted Roviaro. The language of rule 36 actually adopted Roviaro’s framework. The rule’s use of “essential to assure a fair determination of the issues,“
CONCLUSION
¶22 We revеrse Mr. Nielsen’s conviction and remand for further proceedings. On remand, the trial court must conduct proceedings consistent with rule 505, which we read to require that, once the government invokes the privilege, the court must make a determination of whether “an informer may bе able to give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal case.”