The court of appeals recently decided State v. Dark. It's a concise opinion that summarizes and applies the black-letter law on an issue that comes up regularly: when must the state disclose the identity of a confidential informant to the defendant? G.S. 15A-904(a1) says that “[t]he State is not required to disclose the identity of a confidential informant unless the disclosure is otherwise required by law.” This is simply the statutory codification of the so-called informer's privilege -- actually the privilege of the state to keep secret the identity of confidential informants, in the interest of ensuring the informants' safety and continued usefulness. So, an informant’s identity isn’t normally part of open file discovery. But what about the qualifier "unless the disclosure is otherwise required by law"? The cornerstone case regarding disclosure is Roviaro v. United States, 353 N.C. 53 (1957), which holds that when disclosure would be “relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause,” it is required. There are a number of North Carolina cases interpreting and applying Roviaro, such as State v. Stokley, 184 N.C. App. 336 (2007), State v. Withers, 179 N.C. App. 249 (2006), State v. Gaither, 148 N.C. App. 534 (2002), and State v. Johnson, 81 N.C. App. 454 (1986). The following general rules emerge from these cases: 1. The burden is on the defendant to show that disclosure should be required. 2. Factors supporting disclosure include: (a) the informant was a participant in the crime, (b) there is a conflict between the state's evidence and the defendant's evidence that the informant could clarify, and (c) the informant is a likely witness for the state at trial. 3. Factors opposing disclosure include: (a) the informant was a mere "tipster," (b) the defendant admits culpability or presents no evidence, thus leaving no conflict for the informant to clarify, (c) substantial evidence independent of the informant establishes the defendant's guilt, and (d) disclosure would endanger the informant. There's no hard and fast rule about how these factors weigh against each other -- it is a "totality of the circumstances" analysis. Older cases tended to suggest that if the informant was a participant in the crime, disclosure was automatically required, but Dark is an example of a recent trend away from that position. In Dark, the informant arranged and was present for a drug sale between the defendant and an undercover officer. The defendant moved for disclosure of the informant's identity, but the trial court denied the motion. The court of appeals affirmed, reasoning that "only the informant’s presence and role in arranging the purchase weigh in favor of disclosure," given that the state relied on the undercover officer's testimony and that the defendant presented no evidence, and that factor alone was insufficient. There are a number of tricky questions about the informer's privilege -- like how to handle a statement by an informant when the contents of the statement tends to identify the informant -- but I'll save those for another post.
- AboutAs the largest
university-based local
government training,
advisory, and research
organization in the United
States, the School of
Government serves more
than 12,000 public officials
each year. - Browse by RoleThe School provides
content and resources for a
wide array of local
government and judicial
officials in North Carolina.Select your role to explore
all related content.Local and State Government - Browse by TopicThe School provides content
and resources on a wide array
of topics in local government
and judicial administration in
North Carolina.Select a topic to explore all
related content.Local and State Government- State Government
- Planning and Development Regulation
- Community and Economic Development
- Environment
- General Structure and Authority
- Health and Human Services
- Human Resources
- Information Technology
- Intergovernmental Relations
- Leadership and Management
- Local Government Finance
- Open Government
- Other Local Government Functions and Services
- CoursesThe School of Government
offers up to 200 courses,
workshops, webinars, and
professional conferences
each year. - PublicationsThe School of Government
publishes essential books,
manuals, reports, articles,
bulletins, and other print and
online content related to state
and local government. - BlogsFaculty write for a number
of School of Government
blogs providing timely
updates on emerging issues. - ResourcesThe School of Government
offers information and
services related to a wide
range of topics relevant to
government and judicial
officials—in-person and on a
variety of platforms.- Blog Posts
- Centers and Services
- Frequently Asked Questions
- Knapp Library
- Legal Summaries
- Listservs
- Microsites
- Tools and Apps
Timely updates on emerging issuesSpecialized training/research hubs and consulting servicesAggregated answers to common questions on a variety of topicsPrint and online materials and research expertiseBrief descriptions of legal cases, bills, or legislative activityInformation exchanges for peers and faculty expertsIn-depth or aggregated content for local government and judicial officialsOnline and mobile tools for employees on-the-go - Master of Public
Administration ProgramThe UNC MPA program prepares public service leaders. The program is offered in two formats: on-campus and online.For more information, visit mpa.unc.edu - GivingThe School of Government depends on private and public support for fulfilling its mission. Your gift will make a lasting impact on the quality of government and civic participation in North Carolina.
- Knapp LibraryThe Joseph Palmer Knapp Library houses a large collection of material on state and local government, public administration, and management to support the School's instructional and research programs and the educational mission of the Master of Public Administration program. Reference and research services are available to all residents of North Carolina, and additional assistance is available to state and local government personnel, both elected and appointed.