COA affirms order to produce informant for face-to-face interview

Following several failed attempts to interview a confidential informant without compromising the informant’s identity, the Indiana Court of Appeals on Monday affirmed an order requiring the CI to have a face-to-face interview with opposing counsel.

In 2018, Justin Jones was charged in Marion Superior Court with Level 2 felony burglary, Level 3 felony counts of robbery, criminal confinement and kidnapping as well as Level 5 felony kidnapping and Level 6 felony auto theft.

The charges came after Indianapolis police investigated an incident involving two men who assaulted and robbed a woman in her home. Other officers who responded to a report that shots had been fired at a different location the next day discovered the woman’s stolen vehicle and a flip phone belonging to Jones.

Additionally, an officer investigating a group of “serial burglars” in Indianapolis spoke with a CI who had specific information about a home invasion and possible subjects. That information was forwarded to the officers who were investigating the robbery of the woman’s home, leading to Jones’ charges.

After three failed attempts at questioning the CI in a manner that protected the informant’s identity, the trial court ordered the state to produce the CI for a face-to-face interview with Jones’ counsel. It ordered, however, that Jones’ counsel not to ask “any questions that may disclose the [CI’s] identity, identifiers, residence, etc.”

In an interlocutory appeal, the state asserted that the trial court erred when it granted Jones’ motion to compel, arguing that the court abused its discretion because the face-to-face interview between the CI and Jones’ counsel would lead to the identification of the CI.

It likewise argued that the informer’s privilege is applicable in State of Indiana v. Justin Jones, 20A-CR-00664 to protect the CI’s identity. 

But the Indiana Court of Appeals agreed with Jones that the “State never goes beyond an assumption that defense counsel seeing the informant will reveal the informant’s identity.”

“If we were to adopt the State’s position, we would, in essence, preclude the disclosure of any communications in which someone could potentially identify a CI. We decline to adopt that position,” Judge Edward Najam wrote for the appellate panel.

“Here, the court fashioned a solution that balanced Jones’ right to information that would allow him to prepare his defense with the State’s desire to keep the CI’s identity hidden when it allowed Jones’ counsel to interview the CI without asking any questions that would reveal the CI’s identity. Because the State did not meet its burden to demonstrate that the CI’s identity would be revealed, it has failed to meet its initial burden to establish that the informer’s privilege applies in this case,” the appellate court wrote.

Even if it were to agree with the state that it had properly invoked the privilege, the COA found that Jones had met his burden to demonstrate that the CI had information that is relevant and helpful to his defense or necessary for a fair trial.

It therefore concluded that the trial court did not abuse its discretion when it granted Jones’ motion to compel.

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