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Privileges — Confidential informant, § 905.10(3)(b) — sufficiency of information to trigger in camera review

State v. Jessica A. Nellessen, 2013 WI App 46, petition for review granted 10/15/13; case activity

Under the two-step procedure for determining whether a confidential informant’s identity should be disclosed, the 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 there is reason to so believe, then the court must determine, ordinarily after an in camera examination of either affidavits or the informant, whether “there is a reasonable probability that the informer can give the testimony.” Wis. Stat. § 905.10(3)(b); State v. Outlaw, 108 Wis. 2d 112, 124-26, 321 N.W.2d 145 (1982).

Emphasizing the rule does not impose a significant burden and requires only a possibility the informant could supply testimony necessary to a fair determination (¶12), the court of appeals holds Nellessen presented sufficient information to trigger an in camera review of the informant’s potential testimony:

¶14      The issue in dispute is whether Nellessen was aware that the marijuana was in her trunk.  The question before the circuit court was therefore whether the informant might have information that bears upon that aspect of the State’s case against Nellessen.  Outlaw, 108 Wis. 2d at 125-26.  As in Outlaw, “[t]he informer was, it is to be assumed, the eyes and ears of the narcotic agents.”  Id. at 125.  Here the informer provided a considerable amount of detail to the police regarding the transportation of the marijuana:  the model of the motor vehicle; the route of travel, the approximate amount of marijuana involved and that the marijuana was located in the trunk.  It is reasonable to infer from the information provided by the informer to the police that there is a “possibility” that the informer could supply testimony necessary to a fair determination of whether Nellessen was aware that the marijuana was in the trunk of her vehicle at the time the police stopped her in Marshfield.

Contrary to the state’s argument, it does not matter at this stage that the information Nellessen seeks might not establish reasonable doubt. That is not the standard for triggering an in camera review:

¶16      …[T]he standard that the State is relying upon is the standard for whether the informant’s identity should be revealed after the court determines to conduct an in camera review.  See Wis. Stat. § 905.10(3)(b); Outlaw, 108 Wis. 2d 112.  To trigger the review, it is only necessary to show that it is possible that the informer knew enough about the transaction to lend credence to Nellessen’s claim, not that it be certain, or even probable, that the informer had such information.  Here, there are sufficient facts, tied directly to the core issue in the case, to demonstrate that the informer might have information that bears upon that issue and that this is not just a ‘fishing expedition.’  There still remain sufficient safeguards in the in camera review procedure to assure that the confidential informant will not be compromised unless the information would be sufficient to establish reasonable doubt.  See generally Outlaw, 108 Wis. 2d 112 (describing in camera review procedure).  Thus, based on the undisputed information the informer provided to the police regarding the marijuana and how and when it was being transported establishes a possibility that the informer may have information regarding whether Nellessen was aware of the marijuana in the trunk of her vehicle, we conclude that an in camera review is mandated.

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