TRE Rule 508: Informer’s Identity Privilege

(a) General Rule. The United States, a state, or a subdivision of either has a privilege to refuse to disclose a person’s identity if:

(1) the person has furnished information to a law enforcement officer or a member of a legislative committee or its staff conducting an investigation of a possible violation of law; and
(2) the information relates to or assists in the investigation.

(b) Who May Claim. The privilege may be claimed by an appropriate representative of the public entity to which the informer furnished the information. The court in a criminal case must reject the privilege claim if the state objects.

(1) Voluntary Disclosure; Informer a Witness. This privilege does not apply if:
- (A) the informer’s identity or the informer’s interest in the communication’s subject matter has been disclosed—by a privilege holder or the informer’s own action—to a person who would have cause to resent the communication; or
- (B) the informer appears as a witness for the public entity.
(2) Testimony About the Merits.
- (A) Criminal Case. In a criminal case, this privilege does not apply if the court finds a reasonable probability exists that the informer can give testimony necessary to a fair determination of guilt or innocence. If the court so finds and the public entity elects not to disclose the informer’s identity:
- - (i) on the defendant’s motion, the court must dismiss the charges to which the testimony would relate; or
- - (ii) on its own motion, the court may dismiss the charges to which the testimony would relate.
- (B) Certain Civil Cases. In a civil case in which the public entity is a party, this privilege does not apply if the court finds a reasonable probability exists that the informer can give testimony necessary to a fair determination of a material issue on the merits. If the court so finds and the public entity elects not to disclose the informer’s identity, the court may make any order that justice requires.
(C) Procedures.
- (i) If it appears that an informer may be able to give the testimony required to invoke this exception and the public entity claims the privilege, the court must give the public entity an opportunity to show in camera facts relevant to determining whether this exception is met. The showing should ordinarily be made by affidavits, but the court may take testimony if it finds the matter cannot be satisfactorily resolved by affidavits.
- - (ii) No counsel or party may attend the in camera showing.
- - (iii) The court must seal and preserve for appeal evidence submitted under this subparagraph (2)(C). The evidence must not otherwise be revealed without the public entity’s consent.

(3) Legality of Obtaining Evidence.

(A) Court May Order Disclosure. The court may order the public entity to disclose an informer’s identity if:
- (i) information from an informer is relied on to establish the legality of the means by which evidence was obtained; and
- (ii) the court is not satisfied that the information was received from an informer reasonably believed to be reliable or credible.
(B) Procedures.
- (i) On the public entity’s request, the court must order the disclosure be made in camera.
- (ii) No counsel or party may attend the in camera disclosure.
- (iii) If the informer’s identity is disclosed in camera, the court must seal and preserve for appeal the record of the in camera proceeding. The record of the in camera proceeding must not otherwise be revealed without the public entity’s consent.