Under the two-step procedure for determining whether a confidential informant’s identity should be disclosed, a court must first determine whether there is reason to believe that the informant “may be able to give testimony necessary to a fair determination of the issue of guilt or innocence.” If so, the court must determine (usually after an in camera examination of either affidavits or the informant) whether “there is a reasonable probability that the informer can give the testimony.” § 905.10(3)(b); State v. Outlaw, 108 Wis. 2d 112, 124-26, 321 N.W.2d 145 (1982). In this case, the supreme court elaborates on what a defendant must show to satisfy the first step, concludes that the required showing is “a reasonable possibility, grounded in the facts and circumstances of the case, that a confidential informer may have information necessary to the defendant’s theory of defense” (¶2), and applies the test in a way that ultimately collapses the previous two-step procedure into a single step.
The court acknowledges that in Outlaw, the seminal case on § 905.10(3)(b), it clearly held that the initial showing by a defendant “is light indeed,” and “does not place a significant burden upon” the defendant, 108 Wis. 2d at 125-26. Citing the language of the rule itself, the Outlaw court said the showing a defendant must make to trigger an in camera review “need only be one of a possibility that the informer could supply testimony necessary to a fair determination” of the defendant’s guilt or innocence. Id. at 126. Beyond this “cursory statement in Outlaw, however, this court has not elaborated on the defendant’s initial burden….” (¶20). Citing the text of the rule, the court “elaborates” on its meaning:
¶23 If we look at the plain language of the confidential informer statute … it is clear Wis. Stat. § 905.10(3)(b) requires that a motion to compel disclosure of a confidential informer’s identity must be grounded in the facts and circumstances of the case. The phrase “[i]f it appears from the evidence in the case or from other showing” implies that the motion must contain more than mere speculation that the informer has information necessary to the defendant’s theory of defense. Wis. Stat. § 905.10(3)(b). …
¶24 It is true that the nature of a confidential informer makes it impossible to know the specific information that the informer will have, but the statute does not require such a showing. The phrase “may be able to give testimony” confirms that the defendant’s initial burden under the statute involves only a possibility the confidential informer may have information necessary to the defense…. Wis. Stat. § 905.10(3)(b). However, because the aspect of speculation inherent in the language of § 905.10(3)(b) must be grounded in the facts and circumstances of the case, it follows that this possibility must be reasonable.
Concluding the “possibility” required for the first step must be based on the facts of the case seems unobjectionable, as a matter of both the plain language of the statute and common sense. But why does it “follow” from this that the possibility be “reasonable”? The majority doesn’t say. Moreover, the statute doesn’t say “reasonable possibility”; indeed, the word “reasonable” appears conspicuously as part of the second step of the process, suggesting the legislature made a deliberate choice to use it in one place but not another.
But beyond subtly rewriting the statute, “reasonable possibility” doesn’t add anything to the standard or “elaborate” on the plain language, which is about as clear as it gets. That’s especially true given that the “possibility” must be based on the facts of the case, which by itself should guard against proffers of “unreasonable” possibilities. If you’re thinking this “elaboration” of the plain language means the application of the standard will essentially require the defendant to make the showing required under the second step—that there’s a reasonable probability the informant will have testimony necessary to the defense—then you’ve anticipated the majority’s application of its “elaborated” standard. Here’s what happens, starting with some more factual background to help set the stage:
Nellessen was charged with others as party to the crime of possession of THC with intent to deliver. Police stopped her car based on a tip from an informant that she’d be driving at a certain time and place and would have the marijuana in the car. The informant provided details about the car, the time and date of the travel, and the route. Nellessen claimed not to have known the marijuana was in the car and she was traveling with others who could’ve been responsible for placing the drugs in the car, so she argued that the informant’s intimate knowledge of the circumstances made it possible he or she would know how the drugs came to be in the car. (¶¶3-9, 26-27). That isn’t enough to show a possibility of helpful testimony, the majority rules:
¶32 … Wis. Stat. § 905.10(3)(b) provides that an in camera review should be granted “[i]f it appears from the evidence in the case . . . that an informer may be able to give testimony necessary to a fair determination of the issue of guilt or innocence . . . .” (Emphasis added). This suggests that a circuit court should consider all of the evidence to determine whether to grant an in camera review, not just the contents of the defendant’s motion. Here, the circuit court held a hearing on the defendant’s motion after a preliminary hearing had already established that: (1) Nellessen admitted that she could smell raw, or unsmoked, marijuana in her vehicle; (2) Officer Punke testified that Nellessen’s car smelled of raw marijuana when it was stopped; (3) Nellessen told Detective Cramm that everyone in the car had been smoking marijuana; (4) Nellessen’s cell phone indicated she had been involved in marijuana trafficking; (5) Nellessen’s trunk contained a digital scale with marijuana residue on it, in addition to two large bags of marijuana. In addition, the State’s complaint against Nellessen explained that after her vehicle was stopped, she consented to a search of her cellular telephone. A text message from “Andy T” told Nellessen that he was “craving some weed,” and Nellessen responded, “Oh, I see. Well, I can’t help u [sic] now but I’ll call u wen [sic] I get back okay.”
¶33 Given the strength of the evidence against Nellessen, the circuit court could reasonably conclude that the informer’s testimony would not be necessary to the defense because it could not “‘have created in the minds of the jurors a reasonable doubt’ regarding a defendant’s guilt.” Outlaw, 108 Wis. 2d at 140 (Callow, J. concurring) ….
A dissent by Justice Bradley, joined by Chief Justice Abrahamson, identifies the flaw in the majority’s approach:
¶51 The majority’s conflation of the first and second steps of the procedure is apparent in its declaration that “[g]iven the strength of the evidence against Nellessen, the circuit court could reasonably conclude that the informer’s testimony would not be necessary to the defense because it could not “‘have created in the minds of the jurors a reasonable doubt’ regarding a defendant’s guilt.” …. The only way the court could have determined that the strength of the State’s case could not be overcome by the testimony of the informer would be for it to somehow know the contents of that testimony. That knowledge, however, comes from conducting an in camera review.
¶52 …. By weighing the proposed testimony against the strength of the State’s case, before the contents of that testimony are even known, the majority inappropriately jumps to the second step of the procedure for revealing the identity of an informer. …