Disclosure of a Confidential Informant ("CI")

When Can The Identity of a Confidential Informer Be Obtained in New Jersey?

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Use of a confidential witness by the prosecution is something our criminal lawyers deal with almost everyday at our defense firm. Indeed, there are a wide range of offenses where use of a CI or secret prosecution informant crops up. But an informer is not subject to cross-examination or even identification by name as a general rule so attacking his or her conduct or the facts which were related to police can be a challenge. The attorneys at our law firm, the Law Offices of Jonathan F. Marshall, have demonstrated success in avoiding non-disclosure of an informant. This has led to some excellent results on behalf of our clients, including poking holes in the prosecutor’s case and/or triggering favorable plea offers by virtue of the threat that the identity of the informant will not be protected by the Court. If you were indicted on a felony crime, arrested for an indictable charge, or are the subject of a disorderly persons offense, and an informant is being used by the state to prove its case, we can help you. A lawyer is available to discuss exactly how we can assist you in the criminal process immediately. Reach an attorney now at 1-877-450-8301. We also invite you to review the information regarding the subject that follows.

New Jersey Law Regarding Disclosure of an Informant

NJ Rule of Evidence 516 and N.J.S.A. 2A:84A-28 governs when the confidentiality of an informer may be lost. In this regard, these rules provide that:

A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues.

The goal of the law is to protect an informant by creating a presumption against disclosure of his or her identity as explained in State v. Milligan, 71 N.J. 371 (1976). This presumption is not absolute, however, and a Court will disclose a CI where there is a substantial need to do so to insure a fair determination of defendant’s guilt or innocence.

With this in mind, a confidential informant will generally be disclosed where one of the following exists:

  1. The Informant is a Material Witness
  2. The Confidential Informant Participated in the Crime
  3. The CI Provided False Information
  4. Where Anonymity Was Previously Destroyed
  5. Where a Bona Fide Claim of Entrapment Exists

It is also important to keep in mind that the privilege of confidentiality belongs to the prosecution as opposed to the CI. State v. Williams, 356 N.J. Super. 599, 813 A.2d 1215 (App. Div. 2003). Additionally, a motion to seek disclosure of a confidential informer must be raised in a timely fashion or failure to disclose is waived pursuant to State v. Burnett, 79 N.J. Super. 242, 191 A.2d 208 (App. Div. 1963), affirmed 42 N.J. 377, 201 A.2d 39 (1964).

If you would like to discuss the impact a confidential witness is having on your case, a lawyer from our firm is available 24/7 at 1-877-450-8301. One of the attorneys on our defense team would be more than happy to offer their guidance and advice.