Criminal Procedure — confidential informants — in camera review

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Wisconsin Supreme Court

Criminal

Criminal Procedure — confidential informants — in camera review

To trigger an in camera review of whether to disclose a confidential informant’s identity, the required showing is a reasonable possibility, grounded in the facts and circumstances of the case, that the confidential informer may have information necessary to the defendant’s theory of defense.

“If we look at the plain language of the confidential informer statute stated above, it is clear Wis. Stat. § 905.10(3)(b) requires that a motion to compel disclosure of a confidential informer’s identity must be grounded in the facts and circumstances of the case. The phrase ‘[i]f it appears from the evidence in the case or from other showing’ implies that the motion must contain more than mere speculation that the informer has information necessary to the defendant’s theory of defense. Wis. Stat. § 905.10(3)(b). If a motion grounded in mere speculation were sufficient to warrant an in camera review, a defendant would be able to obtain a hearing in every instance. In other words, the exception would swallow the rule. Endorsing the view taken by Nellessen and the court of appeals creates a significant risk of collapsing the two-step process established by the confidential informer statute. Moreover, requiring the motion to be grounded in the facts and circumstances of the case combats against the possibility for abuse from defendants seeking disclosure ‘solely as a retaliatory move or in the interests of his peers in order to thwart the informer’s effectiveness in the future.’ Outlaw, 108 Wis. 2d at 141.”

Reversed and Remanded.

2012AP150-CR State v. Nellessen

Gableman, J.

Attorneys: For Appellant: Zell, Michael D., Stevens Point; For Respondent: Balistreri, Thomas J., Madison; Lambert, Craig S., Wisconsin Rapids