An order requiring a confidential informant to undergo a face-to-face interview with defense counsel has been reversed by the Indiana Supreme Court, which found that an individual’s identity would be inherently revealed through their physical appearance at such an interview.
In State of Indiana v. Justin Jones, 21S-CR-00050, 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.
A confidential informant who had specific information about a home invasion and possible subjects provided information to officers who were investigating the robbery and assault of a woman in her home, leading to Jones’ charges.
The Marion Superior Court, following three failed attempts at questioning the CI in a manner that protected the informant’s identity, ordered the state to produce the CI for a face-to-face interview with Jones’ counsel. The Indiana Court of Appeals affirmed the order on appeal, finding that Jones had met his burden to demonstrate that the CI had information relevant and helpful to his defense or necessary for a fair trial.
But Indiana Supreme Court justices disagreed in a Tuesday decision, holding that an informant’s identity is inherently revealed through their physical appearance at a face-to-face interview.
“Thus, when a defendant requests such an interview—as Justin Jones did here—the State has met its threshold burden to show the informer’s privilege applies. And because the trial court did not apply the established balancing test before ordering disclosure, we reverse and remand,” Chief Justice Loretta Rush wrote for the unanimous bench.
In agreeing with the state, the justices concluded that the trial court should have employed the established balancing test to determine whether an exception to the confidential informer’s privilege was warranted.
“The situation before us, though, is markedly different from that in Beville v. State, 71 N.E.3d 13, 21 (Ind. 2017),” the high court wrote. “Unlike the video of the controlled buy, Jones’s requested face-to-face interview with the CI ‘would obviously reveal’ the CI’s identity, as the interview would disclose physical appearance, which is tantamount to an informant’s identity.”
Justices then rejected Jones’ assertions that such a showing was insufficient to trigger the privilege and that the state must establish a recognition standard. They pointed out that proving recognition would be an impossible burden for the state to meet.
“Second, an interviewer’s recognition of a CI would depend on that CI’s personal characteristics. And it would be arbitrary to apply this privilege to people with distinct physical characteristics, making them more easily recognizable, but not to others who have less identifiable features,” the high court wrote.
Lastly, it noted that such a standard would vary based on geographical areas, like packed cities as compared to less populous rural communities.
On a final note, the justices reminded Jones that modern technology “offers plenty of ways to interview a CI without the meeting being face-to-face” through phone applications and camera filters.
“In an age where an attorney can appear in a Zoom court hearing as a cat, the State and defendants can certainly work together to provide the information necessary for a full defense without revealing a CI’s physical appearance and, thus, identity,” Rush wrote.
The high court went on to note that once the informer’s privilege is triggered, the burden shifts to the defendant to show why disclosure is warranted and that a trial court must then engage in a balancing inquiry.
“Here, however, nothing in the record suggests the trial court engaged in the appropriate balancing inquiry when ordering a face-to-face interview,” it wrote. “Rather, the trial judge explained he had known defense counsel for a long time and trusted counsel was ‘looking for something real.’ The judge added that ‘I’d be curious, too,’ and so decided to ‘let him talk to the guy, let him find out what he can find out.’ But, as explained above, this is not sufficient.”