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Appellate Procedure – Harmless Error – Confidential Informant, Failure to Disclose § 905.10(3)(b)

State v. Phonesavanh Vanmanivong, 2003 WI 41, reversing, 2001 WI App 299
For Vanmanivong: John J. Grau

Issue/Holding: Trial court failure to order disclosure of an informant is subject to harmless error analysis. The state, as beneficiary of the error, bears the burden of proving beyond reasonable doubt that the error didn’t contribute to the verdict. Here, the error was harmless: the error in the trial court’s finding that disclosure was unnecessary was procedural in nature (because it was based on unsworn rather than sworn in camera assertions and because it was procured by the judge rather than the litigants); and, the documentation used by the trial court in this determination was turned over to and used by the defense at trial. ¶¶40-50.

It may be best to view this holding as highly fact-specific. First, maybe most important: this is not, as the court itself casually notes, an instance “where the informant was the only participant besides the defendant in the criminal event.” ¶45. That matters, because “(a)lthough there is no fixed rule, disclosure has usually been required when, as in Roviaro, the informer was an active participant in the events underlying the defendant’s potential criminal liability.” US v. Sharp, 778 F.2d 1182 (6th Cir. 1985). That likelihood, of course, can only increase where the informant is the sole governmental participant – meaning that if a very compelling case can be made for failure to disclose, then the reviewing court will be unable to dismiss the problem as merely “procedural.”

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