Summary
The Utah Supreme Court held that the district court applied the wrong legal standard when evaluating the State’s confidential-informant privilege under Utah Rule of Evidence 505. The court ruled that the applicable inquiry is whether there is a reasonable probability that the informant can provide testimony necessary to a fair determination of guilt or innocence, rather than a three-factor balancing test. The court reversed Kyler Nielsen’s conviction and remanded for further proceedings.
Topics
Practice areas
Questions Presented
- Whether Utah Rule of Evidence 505 requires a district court to apply only the rule's reasonable-probability and necessity standard when determining whether the State's assertion of the confidential-informant privilege requires dismissal of criminal charges.
- Whether the district court erred by applying the three-factor balancing test from State v. Forshee and State v. Nielsen.
Holdings
- When the State invokes the confidential-informant privilege under Utah Rule of Evidence 505, the district court must determine whether there is a reasonable probability that the informant can provide testimony necessary to a fair determination of the defendant's guilt or innocence. The court may not add the informant's safety and public-interest considerations through the three-factor balancing test from Forshee.
- The district court's application of the Forshee three-factor balancing test was legal error requiring reversal of Nielsen's conviction and remand for proceedings consistent with Rule 505.
Key quotations
“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.” (¶ 3)
“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 to a determination of the defendant’s guilt or innocence.” (¶ 14)
“Rule 505 once again tracks Roviaro, not Forshee’s multi-factor gloss. Thus, Forshee misconstrued rule 36 itself, and the plain language in rule 505 now restores the proper scope of the analysis.” (¶ 21)
Factual background
A confidential informant told a Utah County officer that M.G. was selling ecstasy and planned to travel to a rave. Officers stopped a vehicle in which Nielsen was one of four passengers and found ecstasy pills in the center console, a cargo compartment, and a backpack in the rear passenger compartment. Nielsen acknowledged that the backpack belonged to him but claimed that the ecstasy belonged to M.G. The State charged him with possession of a controlled substance, and the State later invoked the confidential-informant privilege when Nielsen sought the informant's identity and related information.
Procedural history
The Fourth District Court in Provo denied Nielsen's request for disclosure of a confidential informant and declined to dismiss the charges after the informant refused to participate in an in-camera interview. The district court applied a three-factor balancing test derived from State v. Forshee and State v. Nielsen. Nielsen proceeded to trial and was convicted of possession of a controlled substance, then appealed. The Utah Supreme Court reversed and remanded because the district court applied the wrong legal standard.
Remand instructions
The trial court must conduct proceedings consistent with Rule 505. It must determine whether the informer may be able to give testimony necessary to a fair determination of guilt or innocence, using the evidence in the case and any showing by a party; the judge may permit the government to present relevant facts in camera. If there is a reasonable probability that the informer can give the testimony and the State refuses to disclose the informer's identity, the State must either waive the privilege and retry Nielsen or assert the privilege, in which event the judge may dismiss the charge on motion of the defense or sua sponte.