Direct Appeal Fourth District, Provo Dep't The Honorable
David N. Mortensen No. 131402457
Margaret P. Lindsay, Douglas J. Thompson, Provo, for
D. Reyes, Att'y Gen., John J. Nielsen, Salt Lake City,
Justice Durham authored the opinion of the court in which
Chief Justice Durrant, Associate Chief Justice Lee, Justice
Himonas, and Justice Pearce joined.
In this criminal case, the State claimed a privilege under
rule 505 of the Utah Rules of Evidence to refuse to disclose
the identity of a confidential informant. Rule 505 provides
that if the State exercises this privilege in a case where
the district court determines that there is a reasonable
probability that the informant can give testimony necessary
to a fair determination of the issue of the defendant's
guilt or innocence, the court must dismiss the charges
associated with this testimony.
We must decide in this appeal whether the district court
applied the correct legal standard when it ruled that rule
505 did not require the dismissal of the charges against the
defendant. Relying upon an opinion of this court that applied
a prior version of the current rule 505, the district court
used a three-factor balancing test. But the defendant argues
that rule 505 required the court to consider only one factor:
whether the confidential informant could provide testimony
necessary to his defense.
We agree with the defendant that the district court applied
the wrong legal test. 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. We
therefore reverse and remand for further proceedings.
A confidential informant told a Utah County officer that M.G.
was selling the drug ecstasy and that she had plans to travel
to a rave with friends. Based on this information, officers
pulled over a vehicle driven by M.G. Kyler Nielsen was one of
four passengers in the vehicle. Officers searched the vehicle
and discovered ecstasy pills in the center console, in a
cargo compartment behind one of the seats, and in a backpack
located in the rear passenger compartment. Mr. Nielsen
admitted that the backpack was his, but claimed that the
ecstasy belonged to M.G. The State charged Mr. Nielsen with
possession of a controlled substance.
Mr. Nielsen moved to compel the State to reveal the
confidential informant's name, address, and telephone
number, as well as other information about the informant.
Invoking rule 505 of the Utah Rules of Evidence, the State
opposed the motion to compel. Rule 505 grants the State the
"privilege to refuse to disclose the identity of an
informer, " unless the informer's identity has
already been disclosed or the informer appears as a
government witness. Utah R. Evid. 505(b), (d). But if the
State invokes this privilege and there is a "reasonable
probability" that the informer can "give testimony
necessary to a fair determination of the issue of guilt or
innocence in a criminal case, " the district court
"shall dismiss the charges to which the testimony would
relate." Utah R. Evid. 505(e)(1)-(2).
The district court elected under rule 505(e)(1) to conduct an
in camera interview to determine whether the
informant possessed knowledge relevant to Mr. Nielsen's
guilt or innocence. But the interview never took place. An
officer claimed that the informant refused to participate in
the interview because M.G. had threatened on social media
that the informant would be hurt if discovered.
After the informant refused to appear, the district court
concluded that rule 505 did not require it to dismiss the
charges against Mr. Nielsen. Relying upon this court's
opinions in State v. Forshee, 611 P.2d 1222 (Utah
1980) and State v. Nielsen, 727 P.2d 188 (Utah
1986), the court applied a three-factor balancing test,
weighing (1) "the defendant's need for disclosure in
order to prepare a defense, " (2) "the potential
safety hazards to the persons involved, " and (3)
"the public interest in preserving the flow of
information from informants." Nielsen, 727 P.2d
at 193. Considering the ...