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 [...]
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