Issue/Holding: The test for disclosing an informant’s identity under § 905.10(3)(b) is found in the concurrence to State v. Outlaw, 108 Wis. 2d 112, 321 N.W.2d 145 (1982):
¶24. We now reaffirm our holding in Dowe that the concurrence in Outlaw states the test to be applied in determining whether an informant’s identity must be disclosed. Based on the language of the concurrence, a defendant must show that an informer’s testimony is necessary to the defense before a court may require disclosure. See Outlaw, 108 Wis. 2d at 139 (Callow, J., concurring). “Necessary” in this context means that the evidence must support an asserted defense to the degree that the evidence could create reasonable doubt. See id. at 141-42. The court of appeals in the instant case relied upon the lead opinion for a point of law upon which the concurrence-majority opinion controls. As such, the court of appeals erred in its statement of the law.
In other words, “relevancy and admissibility” are not to be equated with “necessity,” but are separate inquiries. ¶26. § 905.10(3)(b) codifies the policies embodied by Roviaro v. U.S., 353 U.S. 53 (1957), which requires a case-by-case balancing rather than any fixed rule as to disclosure. ¶¶19-20, 27-28.
¶32. Based upon the above analysis of the law, the following procedures should be used by Wisconsin circuit courts when determining whether an informant’s identity should be disclosed. Once a defendant has made an initial showing that there is a reasonable probability that an informant may be able to give testimony necessary to the fair determination of the issue of guilt or innocence, the state has the opportunity to show, in camera, facts relevant to determining whether or not the informant can, in fact, provide such testimony. If, and only if, the court determines that an informer’s testimony is necessary to the defense in that it could create a reasonable doubt of the defendant’s guilt in jurors’ minds, must the privilege give way. Outlaw, 108 Wis. 2d at 141-42 (Callow, J., concurring).
The opinion contains unnecessarily broad language suggesting that this case-by-case abrogation of the privilege is purely a matter of local evidentiary significance; not, that is, of constitutional dimension. ¶¶29-20. If this is what the court indeed meant to say, then it is plainly wrong, at least as a general proposition. E.g., U.S. v. Sanchez, 988 F.2d 1384 (5th Cir. 1993) (“The final consideration rises to constitutional magnitude: If the privilege interferes with a defendant’s due process right to prepare his defense or if disclosure of the informant or his communication is essential to a fair determination of the defendant’s guilt or innocence, the privilege must give way.” Citing Roviaro, 353 U.S. at 62.) Possibly, the court meant to say merely that the violation of statutory procedure in resolving the question of privilege does not in and of itself raise a constitutional problem. That, certainly, is an unremarkable proposition. Point is, the court’s broad language shouldn’t deter citation of both statute and due process in support of disclosure.