*1 112 Inc.,
King Industries, 72, 108 2dWis. N.W.2d (1982). any facts this case do not fit under exception intercorporate theory to the sound of nonlia- bility corporation. my a successor In accordance with dissenting opinion in Tift, I concur in the result reached in this case. Wisconsin, Plaintiff-Respondent-Petitioner,
State
v. Outlaw, Defendant-Appellant.
John C.
Supreme Court Argued April 28, 1982. July No. 80-1727-CR. 1982. Decided (Also reported 145.) in 321 N.W.2d argued plaintiff-petitioner For the cause attorney general, BaMstreri, assistant J. Thomas *2 attorney Follette, the was Bronson C. La whom on briefs general. defendant-appellant there was a
For the brief and oral by argument Cushing, public L. assistant state Glenn de- fender. of
HEFFERNAN, J. This a review the court of judgment appeals the the cir decision1 which reversed of Winnebago county, court for WILLIAM H. CAR cuit Judge. VER, in the case The issue concerns the Circuit obligations respective a in and defendant state privilege, informer where the sec. 905.10 circumstances Stats., by (1), state and the is invoked the defendant 905.10(3) (b).2 proceeds provisions the of sec. under 1 (Ct. App. Outlaw, v. 2d 311 State N.W.2d 235 Wis. 1981). privilege. Identity The of (1) informer. “905.10 Rule privilege government or a thereof has a federal state or subdivision person a who has furnished to the refuse disclose investigation pos a assisting relating in an information to or or member to a enforcement officer sible of law law violation investigation. legislative conducting a an committee or its staff may ap- by may an privilege “(2) be claimed claim. The Who regardless government, representative propriate of the federal govern- the to an officer of whether the furnished information was may privilege The a thereof. ment or of state or subdivision representative by or subdivision of a state claimed an appropriate the officer thereof. if information was furnished an Exceptions, disclosure; a wit- “(3) Voluntary (a) informer identity of the privilege if the ness. under this rule No exists subject of his communication his the matter informer or interest in resent the cause to has would have been disclosed those who by the informer’s by or a communication holder appears the federal action, as a witness for own or the informer if government thereof. or a or subdivision state appears evidence Testimony from the “(b) on merits. If it may by party showing an a that informer other the case or from testimony necessary the give to a fair determination be able to state, specifically, petitioner
More the review, on this appeals asserts that the court of erred that, when it held procedure when in camera authorized sec. 905.10 issue of or innocence a criminal case or of a material issue on in a civil govern- the merits case to which the federal party, or ment government a state or subdivision thereof federal privilege, or or a state subdivision thereof invokes the judge give government shall the federal or a state or subdivi- opportunity sion thereof show in camera facts relevant determining can, supply fact, whether informer that testi- mony. ordinarily showing will be in the form of affidavits judge may but the direct that if taken he finds satisfactorily upon the matter cannot be resolved If affidavit. there is probability finds a reasonable give testimony, government can federal or state identity, subdivision thereof elects not to disclose his on motion of defendant in a shall criminal case dismiss *3 charges relate, judge the to which the would the and may may do cases, so on his motion. own In civil make an he order justice requires. that judge Evidence to be submitted the shall preserved appellate sealed and to made be available to in the court appeal, the event an of and the contents not be shall otherwise government, revealed without the consent of federal or state sub- parties permitted division thereof. All counsel and shall be be to present every stage proceedings at of under this subdivision except showing a party in at camera which no counsel or be shall permitted present. to be “(c) Legality obtaining If an evidence. information from upon legality informer is to relied establish the of the means which evidence was obtained the is not that and satisfied reasonably the information was received an be- from informer identity credible, may require to lieved be reliable or he the the request informer to be shall on disclosed. The thereof, government, federal or the state subdivision direct that disclosure parties be made in concerned camera. All counsel and present every legality permitted with the issue of be to be shall stage proceedings except under a this subdivision disclosure permitted party camera at which be no or be to counsel shall present. If disclosure of the is made camera, preserved the be record thereof shall sealed and appeal, appellate made available to the the court in event of and the without consent contents shall not otherwise be revealed appropriate government, the state or subdivision federal thereof.” showing, following- initial the defendant’s conducted forego its submit must state “beyond it can show reasonable doubt” unless dismissal will that the informer’s agree appeals that court erred when We defense. upon state, we imposed burden because in ex- court abused its discretion conclude 905.10(3), powers we ercising sec. affirm its under reversing appeals holding the conviction of the court remanding the circuit court. and underlying facts reveal March material on The charging complaint 22, was issued 1979, a criminal Outlaw, delivery defendant, with three counts of John C. agent, to a state undercover months earlier of cocaine five Martine, contrary 161.16(4), Gary to sec. Stats. 10, 25, 19, allegedly place took on October offenses University 1978, campus of the of Wisconsin-Osh- on the kosh. transaction, com- respect October
With Anthony L. Mc- people Outlaw, plaint three stated that — Agent present dormi- Calla, Martine —were drug tory was discussed. transaction room where the room, further discussed and Martine left Outlaw completed washroom, and men’s the transaction in the just room. in the hall outside that the transaction 1979, hearing preliminary held on October theAt pres- people Agent there were Martine testified that four dormitory just prior October room ent in Gray. himself, McCalla, Outlaw, and Cle transaction — *4 of a parking lot in the that met the three He testified he them later met a short time fast-food restaurant and McCalla dormitory. known both that had the He said he never be- Gray meeting he had prior and but that to this defendant, later was Outlaw. who he said fore the met 7, 1980, hearing Martine March At a on Wade-Gilbert again present in the dor- people were testified four just mitory the transaction. room before jury 1980; Trial to a was held on March 17 and, during Agent examination direct Martine re- garding transaction, October he testified that five people present dormitory just prior were in the room to that, shortly transaction. He further testified after dormitory he car, left the on that date and entered his dormitory, the defendant came from the walked to over car, packet cocaine, his and handed him another ex- plaining thought previous packet that he had he had given grams him had contained two when it contained only one.
On cross-examination Martine admitted that he had previously failed presence to mention the fifth person that, complaint, testified other than in the this failure was unintentional. Defense counsel estab- person lished that the fifth was an informer who had ac- companied Agent Martine to the restaurant and then dormitory. further Martine said that the informer present dormitory during in the room the discus- position sion transaction and was to hear the entire conversation in that room and to see what was going on.
Finally, Agent Martine said informer was present packet Martine’s car when the second of co- explanation delivery given caine for its were Martine.
During cross-examination, specifi- defense counsel cally asked informer, the name of the but the state ob- jected, claiming a privilege pursuant law enforcement 905.10(1), Stats., sec. Identity The trial of informer. objection. court sustained the Agent At testimony, the close of Martine’s defense counsel, relying (3) (b), Stats., on sec. 905.10 moved relating dismiss the count to the October 10 transaction or, alternative, require disclosure of the inform- identity. arguing er’s opposed The state motion, *5 right relief had been waived de- to seek such because per- prior to trial that a had known fifth counsel fense present. that, Defense admitted one counsel son trial, report stating received prior to the he had week argued present, person3 but counsel another there was call expected state to all relevant wit- he had morning only of trial found out nesses and had called. The denied would not be court an informer stating motion, that: legislature put by into the law statute here “[T]he disclosing protection apparent not provided
has this they wit- leave out . . . and if choose to guess here, I lend more information nesses that could privilege. . . .” that’s their re- counsel the state’s defense At the close of require dismiss or to motion to his disclosure newed again the motion. trial court denied Count Anthony and Cle McCalla then called The defense claiming refused, fifth Gray testify, but both their McCalla, privilege. respect to because amendment With not claim the ultimately could that he it was determined by amendment, ordered he was privilege fifth being refused, despite held testify; but he still court fifth Gray’s contempt by the court. invocation upheld. The refused state amendment immunity grant either McCalla for consent to a Hence, requested Gray as defense counsel. waiving defendant, by Martine, agent, and the
state’s respect right testify in testify, were able his alleged 10. transaction of October he was testified that The defendant took stand His any of the transactions. person not the involved Agent de- Martine’s disputing testified, also two sisters that, although pointed defendant Appeals out The Court of per fifth know person, he did not was a fifth knew there informer until trial. son was an
scription being “straight” during of Outlaw’s hair as the question. They period in of time the testified that at style time hair was his “Afro.” Outlaw’s was defense identity. alibi and mistaken of the evidence,
At the close defense counsel reiterated his motion to Count dismiss of because the state’s re- again identity. fusal the to disclose informer’s The state argued untimely, that the motion was and the trial court again denied the motion. jury guilty
The found Outlaw of all three He counts. arguing appealed, to Appeals the Court of that the in- 905.10, Stats., former’s found in sec. was not so as trial court absolute the had construed it and as- serting given court, the trial the facts and circum- refusing of this require stances had erred in to identity. argued the disclosure the of informer’s He all three counts should if persisted be dismissed the state in its refusal to disclose. He reasoned that the defend- that, ant’s in all issue as to three counts and testimony Agent if the informer’s discredited Martine’s count, the identification to first then Martine’s entire testimony suspect. would be appeals,
The court of
on Roviaro v. Unit-
reliance
States,
ed
(1957),
The court affi- or, trial court if trial court directed davits camera, hearing produce to determine testimony might relevant and whether the defense. The affidavits or were appeals, to the court to be sealed and returned ordered finding along whether or not there with the court’s give probability that the could reasonable finding testimony helpful of the trial to the defense. sealed, copies was directed not to be were court parties. sent to the op-
The circuit court on remand allowed state the produce portunity its informer in an camera hear- *7 Following ing. hearing, judge that the trial made find- ings in camera and concluded from the that the “testimony would, trial with reasonable helpful probability, be to the Defense.” The not further concluded the informer’s drug other evidence- that an unlawful would corroborate place that: had taken and stated transaction “Although identified could not have informer] [the convincingly Outlaw, the of was so John issue Agent testi- presented by Martine that informer’s] [the helpful mony not, total, when reviewed in would (Emphasis supplied.) the defendant.” appeals,
Upon return to the court of submission of the court, disagreed the trial that court of with the conclusions stating employed too lim- a much that the trial court had in which fundamental ited view of the circumstances evidentiary required disclosure. fairness and rule proceed- that, in camera appeals The in the court held beyond ing, a reason- proving the state had the burden of would able doubt that the informer’s of the helpful defense; its review and, from appeals testimony, concluded camera the court judgment of convic- that burden not been met. had reversed, and all three counts was tion on cause trial. for a new remanded petitioned this court for review of the
The state then disagreed appeals the state decision. While court of appeals requiring on the merits re- mandate the court of conviction, urging principal reason for its versal appeals was that the court decision that we review appeals a in defin- had made serious error the court of Stats., 905.10, pro- ing responsibility in a sec. state’s vehemently appeals argued the court of It cedure. placed the burden on the state to demon- erred when it beyond a reasonable doubt that informer’s tes- strate timony not be to the defendant. would ap-
Ordinarily, not have reviewed a court of we would question peals in a criminal where decision case proper of trial discretion was exercise Here, however, state attacks the burden of volved. proof appeals imposed upon it. has which court of alleged accepted we It is of this latter error re- because reviewing decision, appeals also view. In we the court 905.10, aspects application other of sec. review by parties proof Stats. The burden of to be assumed clearly 905.10(3) (b) proceedings matter under sec. on importance effect statewide and would have an civil, criminal, future. numerous cases some parties all the The relevant rule identified as such *8 905.10, Stats., of Evidence. is of the Rules Wisconsin sec. identity respect This rule in of an informer January 1, adopted by 1974. While this court effective published with Judicial Committee notes Council rely upon previously texts, order cases and decided distinctly product of Su- rule is a Wisconsin Wisconsin making. preme referred to rule Authorities Court may of evi- persuasive, but because rules Committee upon they impinge United dence, do not to the extent that guarantees, state constitutional are matter States
121 law, controlling preceden- federal authorities are not significance. See, Leflar, tial American Law Conflicts 1968), (Bobbs p. Merrill 123. evidentiary 905.10, The rule that controls is sec. Stats. recognizes privilege respect The rule the state’s in recognizes reality formers and that informers are an important aspect lawof enforcement and that the ano- necessary nymity for their of informers effective use. part upon pre-existing of the rule built in framers precedent. 2d See, Liban, Stelloh v. 21 Wisconsin Wis. 119, relying 126, (1963). case, 124 101 That N.W.2d upon Wigmore, emphasized privilege absolute and has limitations. may compel appears ‘if court nec- disclosure “[T]he
essary in order to avoid the risk of false or testimony,’ Wigmore, order to secure useful Evidence page . . . or if the disclosure ‘is useful evidence vindicate the of the accused lessen the risk innocence or disposition proper of false essential to the (2d) (1932), of the Fed. case.’ Wilson v. States United 390, 392.”
Although 905.10(3) (b), Stats., is a Wisconsin sec. grounded precedent, rule it is con- and is on Wisconsin reasoning principal States sistent United (1957). States, Roviaro v. U.S. United position That case in the comments voices the echoed formu- which Wisconsin Judicial Committee Council evidentiary lated our stated: rules. The Committee may . . not be used “The informer . witness prosecution suppress criminal of a public infor- protecting when mation is the flow of interest right prepare outweighed by the individual’s his defense.” 59 2d R149. Wis. de-
Roviaro, however, for up did not a mechanism set termining right was in- a fair trial when accused’s fringed by prosecution’s assertion
privilege. It was clear to Supreme the United States Court, however, that the successful assertion in- of the privilege former’s in deprive that case would Roviaro of evidence material to his defense. 905.10 Because sec. implements philosophy, the basic Roviaro we allude to language the facts and of that case. suspected
Roviaro was transportation of the sale and Roviaro, of heroin. In purchaser the informer was the night of the narcotics. On purchase, of the knowledge Doe, consent informer, po- of the John a lice officer concealed himself in the trunk of John Doe’s shortly delivery automobile before a was narcotics by police made defendant The John Doe. officer overheard the conversation between Doe and the defend- ant, stopped and when purpose the vehicle for the of mak- ing the he delivery, pick was able see the defendant up package place a from a tree and it Doe’s automo- episode by bile. This same also was viewed officer tailing vehicle. production The defendant demanded the of Doe as government, witness. This disclosure was refused government’s upheld and the trial court assertion privilege. the common law informer was The defendant guilty by court, trial of the found which as trier sat upheld by facts. The conviction States United concluded, Appeals, because, court Court trial denying had not re- abused its discretion defendant’s quest. Supreme reversed. It stated United Court States recognition
that, whatever the for reasons privilege: former’s applicability on limitation a] “[There require-
privilege arises from the fundamental [that] an informer’s ments fairness. the disclosure Where of an ... relevant and defense cause, accused, the fair of a or is essential to a determination give way. must In these situations the *10 may require and, court disclosure if the Government information, (Empha- the dismiss withholds the action.” supplied.) P. 60. sis Court that no fixed rule nevertheless concluded justifiable. was balancing problem public “The is one that calls the for protecting against
interest the flow of information right prepare the individual’s proper pend into to defense. his Whether renders de- balance nondisclosure erroneous must taking particular on the of each circumstances charged, possible consideration defens- crime testimony, possible significance es, the of the informer’s and other relevant P. factors.” 62.
Using methodology, proceeded the con- this the Court case hand concluded that sideration of the that: case demonstrated circumstances highly possible was rele- informer’s] “[The . . . might the defense. have vant been entrapment. He might an have disclosed His identity on might upon or petitioner’s have thrown doubt only who witness identity package. He of the was knowl- might possible lack petitioner’s have testified ‘transported’ edge package that he of the contents desirability of car. The from the tree to John Doe’s interviewing calling witness, least as a or at John Doe trial, for the accused preparation a matter for was him to decide. rather than the Government against petitioner of “Finally, use the Government’s riding in Doe’s Doe while John his conversation non- emphasizes the unfairness particularly car peti- only than person, other in this case. The disclosure amplify explain controvert, or himself, tioner Bryson’s report Doe. Contradiction who could John was important conversation of this might have borne amplification or pack- knowledge petitioner’s the contents upon entrapment. might age have tended to show informer the Government’s “This is a case where accused, in trans- participant, than the other the sole in a only witness charged. The informer action amplify position govern- or contradict the Pp. ment witnesses.” 63-64. The Court require concluded that failure to disclosure prejudicial in the case was error and con- reversed the viction.
Despite the fact that Roviaro
twenty-five
was decided
years ago,
appears
to be the
Su-
United States
preme
dealing
right
Court case
with the
of a defendant
compel
disclosure
of an
for
Supreme
trial. Other United States
Court
have
cases
*11
right
dealt with the
compel
of defendants to
disclosure
suppression hearings regarding
legality
of search-
Rugendorf
See,
States,
es.
v.
(1964),
United
It apparent, balancing philosophy that the in privilege Roviaro is reflected the informer’s rule recog- Evidence, 905.10, the Wisconsin Rules which privilege nizes 905.10(1) (2), spells and out 905.10(3). (a) 905.10(3) the limitations in Rule essen- tially provides that, where the “communication has been disclosed to those who would have cause to resent communication,” and the disclosure is either government informer, privilege or the Rule is lost. 905.10(3) (c) is concerned with the informer’s pertains legality itas to the and of searches and seizures provides for an in camera disclosure of the informer necessary where deems legality. sure such 905.10(3) (b), Testimony merits, pertinent
Rule
on
case,
this
possibility
is concerned with the
that an inform-
necessary
It, too,
er has material evidence
to fair
a
trial.
905.10(3) (c), provides
proceeding
like
an in
for
camera
game.”
“judicial guessing
to avoid a
v.
United States
Day,
464,
(3rd
also,
1967); see,
384 F.2d
United
Cir.
Skeens,
(D.C.
States v.
by: showing by “. . . in the from evidence case or other party may give testimony that an informer be able to necessary to a fair determination of the issue of (Emphasis supplied.) innocence a criminal case.” Sec. 905.10(3) (b). portion place significant This rule does upon party seeking burden disclosure. There need “showing may abe . . . able give testimony necessary” to a fair trial. In the instant identity. factual The de- issues are alibi and wrong fendant claimed he man and that he was was Any testimony upon elsewhere at the time. that bore aspects possibly rele- these the defendant’s case testimony placed the vant and material. Martine’s own defendant, he could informer in a room with the where on. had ar- hear and see all that went The informer ranged alleged the introduction of the criminals drug agent admittedly position in a to see the packet of trafficker when he delivered the additional *12 agent hardly con- cocaine to the car. It can be at the by showing tended that initial there was sufficient give might to the defendant that the informer be able testimony necessary identification a fair determina- to guilt tion of or innocence. eyes was, assumed, and
The informer it is the to be agents. Thus, ears of the narcotic it known once was during present that an the trans- there was informer action, appropriate the it that for counsel to assert necessary testimony might fair de- be for a guilt and termination of the or of the accused innocence identity. to ask disclosure of informer’s This is for minimal burden on defendant. As we understand the attorney position general, recognizes the he that the showing give may that “an burden informer be able testimony necessary (emphasis . . .” supplied) to a fair light trial is indeed. showing only possibility need of a that one necessary supply
informer could a fair de- showing termination. That has been made here. rule, showing made,
Under once that it behooves the state to either disclose the informer opportunity proof or avail itself of offer of what actuality testify the informer can about. give oppor- . shall the . . state ... “[T]he tunity whether determining to show in camera facts relevant can, fact, supply testimo- ny [necessary guilt to a fair determination of or inno- 905.10(3) (b). Sec. cence].” opportunity This for the state to show give testimony necessary informer cannot “a de- fair termination” of the or innocence of the defendant. foregoes If it opportunity, judge, this on the basis preliminary showing, and, can order disclosure identity, the absence of disclosure of the informer’s dis- miss the case.
If the opportunity state itself of avails to show give testimony necessary the informer cannot for defendant, may the fair trial of do so affidavits testimony. permitted The fact that affidavits are for purpose judge’s this demonstrates that the trial role is relevancy limited to the admissibility of the testi- mony. except Credibility, law, as a matter of is not to Credibility be determined on the basis of affidavits. may testing assumed, purpose rel- for evancy admissibility. To make a more extensive quiry credibility into stage proceedings at this *13 usurp jury. would the function of the See, 2dWis. R158. showing by
Where the of the state is affidavit or in testimony, question camera for the is whether a probability” there is “reasonable that the informer give testimony necessary can to a fair determina- proof tion. positive, There need not be but there must be showing that possibility exceeds the standard of ini- tially put on “may the defendant that the informer be give testimony able to necessary to a fair determina- guilt tion of the issue of . .” innocence . . testimony taken,
Where the directs that proof positive there can be of what an informer will say.4 procedure, As we view the burden on the go showing state is to forward with its if it does not —i.e. wish disclose the informer or its dismiss must by (or show affidavits camera at the direction judge) say upon what the will if called to tes- tify. may respect This is in to matters which be relevant to either or innocence of—the accused. beyond going No burden the mere forward with such placed upon nothing evidence is the state. There is requires the rule or in the realm of reason that more of juncture. the state at this what the The state must show be, required would more. but it is not to do requirement beyond There nois a rea- the state show sonable doubt the informer’s would Appeals erred defense. The Court imposed requirement upon when it this the state. by fully
The state in this its burden instance assumed producing m camera examination informer for the procedure portion In view of is de the fact this expect “opportunity” state, we nominated as an for the would judge, circumstances, re the state’s under to accede to most camera, quest testimony. for in
128 discharges obligation
the court. This of the state whereby insures a mechanism judge the trial can deter- mine give testimony necessary whether the can informer guilt to the fair determination of or innocence. It also as- sures the and the state informer of if the non-disclosure informer’s is not material and on the relevant question guilt or, or innocence even if it is found to be, protect dismissing the state can its by balancing mechanism; This case. is the and once there finding, appropriate, judiciál the exercise of dis- cretion, that the ad- is relevant and missible on an and, issue material to the accused’s defense hence, reasonably necessary question on the innocence, the irretrievably tipped balance is side of disclosure. said, pp. As Roviaro 60-61: “Where the identity, disclosure an informer’s or of communication, contents his help- is relevant and ful accused, to the defense of the or is essential to a fair give way.” determination of a cause, the must (Emphasis supplied.)
McCray Illinois, 300, 307, relying upon v. U.S. Jersey case, New stated that: “ charge the trial of a criminal [In] .... the need for outweighs society’s
a truthful verdict for need privilege,” former The determination of the after the makes state showing its resolves the in Roviaro. balance referred to testimony is, If the “necessary” rule, in the words of the for fair trial of the defendant or tend lead will verdict, finality to a truthful the balance is struck with process for requiring disclosure. But the is one exer- judge. cise of discretion the trial The Wisconsin rules identify discretionary See, the decision as a one. Wis. 2d Roviaro, p. 56, question R148. refers to the before Court as trial whether “the court had . . . its abused discretion.”
Thus, concededly in the instant where the defend- showing- required trigger ant made minimal placed going on burden the state —the burden forward respect the evidence to the informer’s only question —the whether abused his reaching discretion in the conclusion that the evidence produced. need not be McCleary State,
In
v.
49 Wis. 2d
The trial this case the informer and reached his conclusion on the basis of that testimo- ny. opportunity inspect had We have this sealed transcript testimony. was It reveals that the informer present during alleged- at which transaction Outlaw ly drugs Agent delivered Martine. The informer stat- drug ed that he had himself been trafficker being “tired of chased.” been co- He stated he had operating with law for several enforcement officials years. respect In he transaction October person said he met a as had known Outlaw three arranged four months He that he before. stated agent persons troduction on October 10 of the to three selling 10th, informer, who were “coke.” On Martine, an automobile with rendezvoused a drive-in persons, restaurant with Outlaw and two other identified Tony Gray. They then men’s dor- and Cle went to the mitory. spent min- stated he ten about company dormitory in the of Outlaw at
utes and he him at saw the restaurant.
Despite fact having the informer admitted to been introduced to Outlaw three or before, four months saw restaurant, having him at the spent admitted to ten dormitory him room, minutes with on the 10th in a he identify photographs Outlaw, that he could not stated him, to photographs which were shown to per- drug that, son who was at the transaction. He also stated appeared trial, had he at the he was “not sure” he could say participated drug the defendant in the transaction. response In question, you to the court’s think “And do inability identify that that him now would have been probably trial],” the same the time of the informer [at “Probably; answered, say I couldn’t for sure.” then He say went on to that he would not have been able to make positive identification that the defendant one of persons present. Although part he did not take drugs, actual transfer is clear from in cam- era telephone that he made the call that set up preliminaries the transaction and witnessed the package. the transfer and the transfer of one He was not *16 tipster; a mere participant. he was a He said he inwas the of State Wisconsin at the time of trial and responded indicated he could have to a sub- poena but response “would not rather of.” In to the judge’s question, required that, appear he said were he testify, it would limit his informer the activities in future.5 expressed pointed safety. He no concern for his should It out, however, safety of the an is not the concern informer safety
trial court. Its concern the is to afford a fair trial. The responsibility option is the of the state. has the It refusing identity pays price to reveal the informer. The protection however, This, for such dismissal the case. acceptable deprive person more sacrifice than to of a fair trial. judge interrogated The circuit also the narcotics officer who said, appeared, He had testimony he his would not have helpful been to the defense he because would not have been identify able to Outlaw.
In summary, hearing, at in camera stat- up ed that it was appeals to the court of to determine whether the of the informer helpful would be to the defense. He said on the record of the m camera proceedings: guess “I ways. it can be looked at both One, there is identity question and the other question there is a
whether or not taking unlawful transactions were place.” Despite judge’s the trial expressed during view hearing that the informer’s could be viewed as to the defendant on question identity, though question not on the of whether a transaction took place, findings in his approach took a different reaching his decision. making specific
After finding the informer could identify photo Outlaw from lineup could not have being identified him person at trial as drug at the transaction, surprising the court reached the conclusion: “Accordingly, this Court finds that tes- [informer’s]
timony would, at trial probability, with reasonable not be helpful to the Defense. The . .. would corrob- orate other drug evidence that an unlawful transaction was agent the informer’s control. That had the informer testified cooperated years, with the state for four over the informer transaction, displayed “connected” with the October that he photographs of Outlaw informer, informer was identify being unable to The Outlaw as informer was scene. being subject characterized the “most reliable I whom that, viewpoint Department have ever worked” and from the Justice, “greatly it was desirable” that the informer’s questioning inappropriate. judge’s not be revealed. This protect concern integrity process. should be to of the trial *17 requirement integrity compromised by That must not what be the state thinks desirable. Although place party with a known as John Outlaw. took Outlaw, could not have the is- identified John [informer] identity Agent convincingly presented by was so sue testimony not, that when re- Martine would [informer’s] total, viewed in be to the defendant.” appeals finding that con- The court of concluded this “disregarded discretion, an because it stituted abuse bright determined; is, line to be that whether testimony would be beneficial informant’s Outlaw’s state, 2d at It then on to 244. went case.” Wis. correctly out, pointed that it we have was burden beyond to show a reasonable doubt of the state helpful. would not be proper is the testi- conclude that the test whether We given mony ad- the informer could have was relevant and respect accused’s missible in to an issue material to the reasonably necessary hence, fair and, to a defense innocence. that deter- determination of When made, in camera mination the role of the proce- judge, up end. under It is not Stats., 905.10(3) (b), to determine wheth- dures of sec. helpful. will in er the fact identity issue, and, in the comments Here was an judge during session, acknowl- in camera he the trial edged would be the non-identification helpful; that the additional then he went on to state damaging. illegal drug proof of the transaction would be illegal trans- there was an As we view the the fact defense, but not an issue in Outlaw’s action was and alibi were. when discretion that the trial court abused its
We hold weighed proof of the the evidence and concluded damaging evi- than to Outlaw transaction would be more out, points non-identification. As Homaro dence of what defense offered determine facts of the case and the rele- may Identification relevant to defense. drug not. We transaction was fact there was a vant —the *18 judge cannot conclude that rational the trial reached a ignored finding, he issue, identity, for the fundamental testimony to which be relevant. would hindsight. Moreover, he perhaps viewed the case in This understandable, over; hy- was for the trial he that, pothesized though even the informer testi- would fy Outlaw, identify that could he not had iden- Martine him and testimony tified that Martine’s was so convinc- ing helpful of identity informer’s lack would not be speculation. to the defendant. But this It is sheer speculation respect in jury how to would have viewed testimony inconsistency inconsistent be- —not tween informer, Martine and the but the incon- internal testimony light sistencies of Martine’s viewed in say. what the informer would The informer would have said, know, now placed we that he could Out- have despite law at the scene—this fact he had met Out- previously, arranged law several months had the meet- ing, restaurant, had at been him the short-order had company dormitory been in for ten his minutes room, and also saw the trafficker when he delivered packet drugs additional to at car. In- Martine exposure drug former’s substan- to the trafficker was tial. judge can a How conclude that the non-identi- jury fication credible would less finding judge’s here, than Martine’s? The where credi- bility issue, usurpation is an was a of the function jury.
Also, contrary language appeals, to the the court of what is in fact decision the defendant is not a that should be the trial 905.10 made under sec. (3) duty (b), is, Stats. His the exercise of discretion rather, the informer determine give respect could to an is- relevant and admissible hence, and, sue material is rea- the accused’s defense sonably necessary guilt or in- to a fair determination of nocence. As Roviaro said: calling desirability witness, “The John Doe as a interviewing preparation trial, least him in for
matter for accused rather than the Government decide.” P. 64. apparent recognized Here it is that the trial i.e., relevant, informer was the fact experienced drug that an observer transaction *19 say present could not that Outlaw was to make the tended likely. See, participation 904.01, fact of Outlaw’s less sec. Stats. The informer’s was therefore relevant on a effect, judge material issue of the case. In the trial testimony, decided that the it tended informer’s because prove drug transaction, to the de- was harmful to proof integral fense. But the of the transaction was to the defense. defense he was not Outlaw’s was that present illegal at the transaction. case, counsel,
As we view the aid skillful with testimony, might in- have made substantial Agent credibility. roads on Martine’s At times various during criminal Martine had said there were persons present three transaction, four, at the then and finally tried, partici- five. As the other case was the two pants testify in the transaction refused to on fifth amend- grounds. obliged Hence, ment defendant was privilege foresake his constitutional remain silent in Agent testimony. an effort It controvert Martine’s against was Martine’s that of the defendant. testified, jury Had the informer have would been obliged Martine, question to confront the of whether inconsistencies, his series of in in as- fact his credible interrogation sertion that Outlaw there. The of the impartial reveals that the inform- highly leading susceptible er was questions. A skill- ful-cross-examiner, adversary with an interest —an terest properly which the trial did not have— might credibility well have undermined Martine’s eyes jury. Whether the defendant would in the analysis final have decided to call the informer was a for the matter defendant and his counsel to decide as a strategy. matter It them was for to decide and judge. They not for deprived opportu- were nity interviewing, perhaps calling witness, as a material witness the crime. it is determined that Once reasonably necessary of the informer (i.e., respect is relevant and admissible to an issue defense) guilt material to a fair determination of innocence, thing clear —it ceases. One give was established that the informer was “able to tes- timony necessary ato fair determination the issue (905.10(3) (b)) or innocence in a criminal case” pertained to John Outlaw. failing
We conclude that the trial court to make finding abused its discretion and must reversed. conclude, We consistent with the decision of the court of appeals, that the case must be remanded for a new trial given the defendant be the in- *20 opportunity former and the to if call him as a witness he wishes to. presents
This determination It the state with a choice. balancing now must confront the choice of the value of continued flow of informant information to the state against permit the realization that the in- the refusal former to be called will result the case dismissal of against Outlaw. It This is the decision to state’s make. may preserve confidentiality if it of its informer so, proceed wishes to do it cannot do so and also deprive the case and a defendant of a fair determina- guilt tion of or innocence.
Anyone prosecuted period of who has cases over a foregoing time has been confronted with the dilemma of particular prosecution, because, long run, par- in the ticular information or a source of information is public
greater
importance welfare than a convic-
particular
in a
case. This is not an
tion
unusual deci-
prosecutor
for a
to make. It is clear that,
sion
when the
exemplary
state,
purposes,
deny
for even
elects to
a de-
argu-
fendant access to information or
must,
ably exculpatory,
forego
prosecution.
it
Brady
(1963);
Maryland,
Agurs,
v.
In upon we conclude that the failure request produce witnesses, evidence or im- whether an may not, or former be favorable to an accused where guilt the evidence is relevant to or innocence due violates process. Brady supra Marlyand, Outlaw, v. at 86. there fore, upon showing demand, right, upon had the the mere present the informer was at the transaction —es pecially because was the defense —to have de “may termination of whether or not the informer able give testimony necessary to a fair determination of issue or innocence.” state, upon showing, such because it had control of informer, option foregoing then prose- had the cution, might it because know was relevant disputed protect material to a issue and wished informer, might, its it did this after re- appeals, go mand “op- the court of forward with the portunity” showing whether the was of a produced guidelines kind that should be or not under the evidentiary rule. This was its burden if it production wished to demur to the of the witness follow- ing showing. duty defendant’s initial The state’s merely produce testimony. It had no burden of proof. produced witness,
The state and the in camera hear- *21 ing balancing constituted the mechanism between the duty produce that, hand, the state to evidence on one might necessary to preparation be a fair trial or for the and, the accused’s defense on hand, priv- the other the ilege protect of the state an to informer. The in camera designed procedure “judicial is guessing to avoid the game” Supreme in which United the States Court indulge. Roviaro had The camera mechanism re- the is solves balance and intended to determine with accuracy testimony reasonable whether the informer’s necessary is, is defendant’s fair trial. If the end, is at an and the state must then balance desirability proceeding particular prosecu- the with a tion, damage compared suffering having the trusted informer unmasked. hearing
The decision of the after an in camera judicial discretion; or submission on affidavits is one of properly if discretion is exercised in accordance with application proper facts and the and a of law decision rationally following consideration, is arrived such the upon upheld. ques- decision based discretion will be The merely may testimony necessary tion is whether the a fair trial. here, part testimony Under the facts the was nec- essary, i.e., identity. part relevant Whether testimony likely helpful would accused is strategy, matter for defense court or for the for the skillfully state. We believe that the facts elicited informer, which tended to show that os- tensibly experienced identify observer, could not Outlaw, trial, undermining if used at would be useful Agent credibility. But, again, Martine’s once it is estab- testify lished on an would issue i.e., relevant and defense, is material to the that the testi- mony necessary, is reasonably use whether would be is for the to decide. defense Moreover, credibility of the informer’s jury, judge. for judge’s function, not for the if it cannot proffered be said *22 law, of any credible as matter is similar jury to that in judge’s duty merely case. The compe- to determine tency, finally relevancy, admissibility. jury assessing weight alone has the function credibility. of agree objection with We the state’s Court Appeals placing “beyond the burden a reasonable doubt” upon the state to show that testimony would not be helpful. beyond production It has no burden of the testimony by person affidavit or the of the informer in camera. opportunity Here the state availed itself of the produced afforded and the informer. The decision of the judge, speculation trial based on about the effect testimony jury on the and his conclusion that proof illegal drug the added there was an transac- damaging tion would be defense, usurped both the jury function of the and of defense counsel. The trial judge’s decision was the result of an abuse discretion. paramount
Because
was a
issue and the neces-
sary testimony of the
would
have tended to
make the
person
identification of Outlaw as the
at the
probable,
scene of
relevancy
the crime less
and ma-
teriality (sec. 904.01, Stats.)
of the informer’s
permeated
charged.
all
counts,
three counts
In all three
credibility
Agent
linchpin
Martine was the
state’s case.
try
Because the state chose to
these cases
together,
permeated
counts;
the error
all
and we there-
agree
fore
with the
appeals
of the court
decision
re-
versing
judgment
entirety.
the circuit court’s
in its
Peo-
ple Durazo,
v.
354, 356,
(1959).
52 Cal. 2d
By Court. —Decision affirmed. CALLOW, (concurring). agree
WILLIAM G. J. I with portion majority dealing opinion proof requirement burden of issue. “There no that the beyond state show a reasonable doubt that the informer’s Supra, would not be to the defense.” at 127. emphatically disagree portion with of the ma-
I scope jority opinion which establishes the review of during hearing: an in camera “We conclude proper test is the inform- that the whether given admissible in re- have relevant and er could *23 and, defense spect to an to the accused’s issue material necessary hence, reasonably a fair determination guilt Supra, I believe do not of or innocence.” at 132. respect an ma- in issue that relevant and admissible equivalent of rea- terial to the accused’s is the defense guilt sonably necessary of or to a fair determination innocence. clearly 905.10(3) (b), Stats., specifies that after
Sec. inquiry judge if there in camera the trial determines an give probability that can is a reasonable the informer testimony “necessary of the issue to a fair determination (Emphasis a criminal or innocence in case.” “admissible,” added.) The statute does not use the words signifi- “relevant,” “helpful.” it, As I see there is a something may terms; be cant difference between these necessary.. Only if an admissible, relevant and testimony necessary to trial will informant’s a fair is Although give way. federal cases the informer’s majority language helpful, the has use relevant correctly con- are not of that “federal authorities noted trolling significance.” The ma- Supra, at 121. precedential correctly jority also states: Wisconsin [inform- “[T]he distinctly product privilege] er’s rule is a Wisconsin making.” Supreme Supra, 120. rule at Court Although 905.10(3) (b), Stats., not define does sec. meaning light “necessary,”1 federal shed on cases 1 “essential,” dictionary Necessary, by means common definition “absolutely required,” “indispensable,” “that cannot [which] Dictionary, 1510-11 International done without.” Third Webster’s only 905.10(3) (b), Stats., if an in (1966). interpret As I sec. indispensable informer’s must the is essential or former’s 126, 119, Liban, compelled. 2d v. Wis. See Stelloh 21
140 necessary I that term. believe informer’s jurors if it “could have created in the minds regarding guilt. reasonable doubt” a defendant’s United Eddings, 67, (6th 1973). States v. 478 F.2d This 72 Cir. discretionary decision for the trial make. 126, Liban, Stelloh v. 2d Wis. N.W.2d (1963). Supra, 128. my opinion, testimony, revealing
In the informer’s positively identify defendant, he could not “could jurors have created the minds of the a reasonable regarding guilt. Accordingly, doubt” defendant’s failing compel abused his discretion identity. disclosure of the informer’s following por- The trial court was not in error appeals tion direction of the re- court which quired only helpful if disclosure it were to the defense. 905.10(3) appeals (b), Stats., The court of construed sec. require disclosure if were found to be relevant and to the defense. *24 terminology ignores helpful” lan- “relevant and the guage denominating “necessary fair the statute to a guilt proper determination of the innocence” as stan- interpretation language dard. A rational of this does require identity the conclusion that the informer’s probative only disclosed to the the defendant if it is guilt of the defendant.
Following reasoning majority opinion, a the defendant need convince informer the the has information which is in re- relevant admissible spect to an material If issue to the accused’s defense. the inquiry judge concluding the camera in the results (1963), 101 Law N.W.2d where the American we noted Institute, Evidence, 168, provides that Model Code at Rule 230 identity the of an informer if it “is essential should disclosed added.) (Emphasis a assure fair determination of the issues.” States, (1957) (“essen- also United See Roviaro v. 353 U.S. cause”). tial to a fair determination of a identify defendant, positively the such testi- can informer majority. I the mony the test enunciated would meets being necessary support the test to evidence limit Therefore, where theory identification of the defense. necessary to is not issue, I would declare evidence identity can where the theory of mistaken certainty as the with reasonable identify defendant activity. In the instant participant in criminal a and made was not faced with such situation grounds, I forth this on other set his determination identify test. need to limit the possible situation his evidence of the available who knows defendant A overwhelming may upon disclosure insist retaliatory solely identity move or a informer’s peers in to thwart his order interests of in the future. effectiveness re- it “is well because
This limitation is essential drugs poses a illegal traffic in narcotic member that more problem No leads .... most serious social crime Moreover, directly of other to the commission offenses. prove .... most difficult crime to detect it is a use is, therefore, without the difficult most Enforcement protec- give . .... To of . . informants [informants] policy non- governments always tion have followed en- course where identities.Of of their disclosure policy deprives cunaccused nondisclosure aof forcement prosecution or the relaxed trial must either he fair States, 353 U.S. foregone.” v. Roviaro United must he added). dissenting) (emphasis (Clark, J. at 66-67 majority language reject in the specifically I of an stating test for opinion proper disclosure the informer’s be whether former’s I *25 issue. con- to a material admissible was relevant and precedent to disclosure condition an essential clude that necessary de- is deprives Furthermore, an when nondisclosure fense. is neces- trial, when indeed disclosure a fair accused sary it could create a reasonable doubt of the defend- guilt jurors’ minds, in the then ant’s and then should important give way. this am authorized to state that Justices Day, I Steinmetz, concurring join in opinion. and this Ceci, STEINMETZ, (concurring). J. I concur with the opinion of Justice William G. Callow in his statement proper by applied test to be a trial when de- termining whether the of an informant will be upon disclosed demand of the defendant. determining
I would add that in whether the necessary, of an informant is should determine resulting whether that evidence would be merely regard cumulative in to other evidence available already produced. merely cumulative, or If it then necessary is not for a fair determination or inno- addition, cence. In whether evidence from informant necessary, may be determined whether the same information evidence is available from another source or other sources.
I am authorized to state Justices Day, Roland B. join G. Callow Louis J. Ceci in this con- William curring opinion.