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Court examination of confidential informant’s testimony was required

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In State v. Nellessen, a circuit court's decision denying the defendant's motion to disclose the identity of a confidential informant was reversed by the Wisconsin Court of Appeals. The appeals court determined that the circuit court should have conducted a private "in camera" review of the confidential informant's testimony since there were facts suggesting a possibility that the informer had material evidence necessary to preserve the defendant's right to a fair trial.

The appeals court's ruling is currently under review by the Wisconsin Supreme Court.

Background and procedural history

In 2011, police in Marshfield, Wisconsin, stopped a vehicle being driven by the defendant. Four passengers were also in the vehicle. While checking the passengers for identification, the officer detected "a raw odor of marijuana, or THC." The officer searched the passenger compartment of the car and found approximately 0.4 grams of marijuana in a prescription bottle. A subsequent search uncovered approximately 14 ounces of marijuana hidden inside a computer located inside the trunk of the vehicle.

Prior to the stop of the defendant's vehicle, the police obtained a tip from a confidential informant that the car would be coming through Marshfield carrying approximately one pound of marijuana.

The defendant was charged with one count of possession with intent to deliver THC. She denied any knowledge that the marijuana was in her trunk. She filed a motion for disclosure of the identity of the informant and asked the circuit court to conduct an in-camera examination of the informant to determine if the informant could offer any testimony on the issue of whether the defendant was aware of the presence of the marijuana in the trunk.

The circuit court denied the motion, and the defendant appealed.

The decision by the Court of Appeals

The Court of Appeals reversed. The identity of a confidential informant is generally privileged, but the Wisconsin statutes define certain limited circumstances where a confidential informant's identity may be disclosed.

One statutory exception requires the circuit court to use a two-step procedure to determine whether the exception applies. First, the court must decide if there is reason to believe that an informant may be able testify to matters that are necessary to a fair determination regarding the defendant's guilt or innocence. Second, the court must decide whether it is reasonably probable that the informant can give the testimony. The latter determination is usually conducted "in camera" in the judge's chambers, where the judge privately examines the informant personally or reviews written affidavits.

A party seeking disclosure is entitled to an in-camera review by merely showing a "possibility" that the informer could supply testimony necessary for a fair trial. In this case, the informant provided very specific information to the police, including the correct model of the defendant's vehicle, the travel route, the approximate amount of marijuana being transported, and the fact that the marijuana was hidden in the trunk. Since the informant possessed this level of detailed information, the appeals court said it was reasonable to infer the "possibility" that the informant could give testimony on the issue of whether the defendant was aware of the marijuana in the trunk of the vehicle when she was pulled over. As a result, the circuit court should have conducted an in-camera examination of the informant.

Contact an attorney

Those who face drug charges or other criminal matters should look for the help of an attorney experienced in defending these matters to ensure that their rights are protected.

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