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State v. Jessica A. Nellessen, 2012AP150-CR, petition for review granted 10/15/13

Review of published court of appeals decision; case activity

Issue (composed by On Point)

Was Nellessen entitled to an in camera review under Wis. Stat.§ 905.10(3)(b) to determine whether an informant may be able to give testimony necessary to a fair determination of the issue of guilt or innocence, when the defendant claims she was unaware there were controlled substances in the trunk of her car, other passengers in the car could be responsible for the presence of those substances without her knowledge, and the confidential informant told police officers that they would be able to find controlled substances in the car on a certain date, time, and location, suggesting intimate knowledge by the informant of circumstances leading to the drugs being in the trunk?

The issue statement is based on the parties court of appeals’ briefs and the published decision. Given the fact-specific nature of the issue in the case and, as described briefly below, relatively settled law about overcoming the informant privilege, it’s not clear what the basis for the grant of review is. Clearly, though, a decision in this case could affect the current procedure and grounds for seeking an informant’s identity.

As noted in our post on the decision,  § 905.10(3)(b), as interpreted by State v. Outlaw, 108 Wis. 2d 112, 124-26, 321 N.W.2d 145 (1982), creates a two-step procedure for determining whether a confidential informant’s identity should be disclosed. The first step requires the court to determine whether the informant “may be able to give testimony necessary to a fair determination of the issue of guilt or innocence.” If there is, 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.” The dispute in this case was whether Nellessen had shown enough to trigger an in camera review. The circuit court thought not, but the court of appeals disagreed.

Outlaw set a low threshold for triggering an in camera review: “This portion of the rule does not place a significant burden upon the party seeking disclosure. There need only be ‘a showing . . . that an informer may be able to give testimony necessary’ to a fair trial.” Id. at 125. Also: “This is a minimal burden on a defendant. As we understand the position of the attorney general, he recognizes that the burden of showing that ‘an informer may be able to give testimony necessary . . .’ (emphasis supplied) to a fair trial is light indeed.” Id. at 125-26. A different, higher standard applies when the court is deciding whether the informant’s identity should be revealed after conducting the in camera review: The informant’s testimony must be “necessary” to the defense, meaning it must support an asserted defense to a degree that could create reasonable doubt. Id. at 141-42 (Callow, J., concurring); State v. Vanmanivong, 2003 WI 41, ¶¶22-24, 261 Wis. 2d 202, 661 N.W.2d 76. (As explained by Vanmanivong and State v. Dowe, 120 Wis. 2d 192, 352 N.W.2d 660 (1984), this part of the test is established by the concurrence because that statement garnered a majority of justices.) Thus, the threshold question is whether the informant may be able to give testimony in support of the theory of defense. State v. Norfleet, 2002 WI App 140, ¶11, 254 Wis. 2d 569, 647 N.W.2d 341; State v. Hargrove, 159 Wis. 2d 69, 75, 469 N.W.2d 181 (Ct. App. 1990).

In this case the state argued the defendant didn’t trigger an in camera review because she hadn’t shown even a possibility the informant’s testimony would create a reasonable doubt about her innocence or guilt. For reasons well explained in its opinion, the court of appeals rejected that claim. (¶¶14-16). Because the application of § 905.10(3)(b) seems settled, it’s not clear what legal issue this case presents. Perhaps the state sought review to clarify a defendant must show a possibility the informant will provide information that creates a reasonable doubt about the defendant’s guilt. Though that seems reasonably clear from, e.g., Norfleet and Hargrove, the supreme court has not explicitly addressed the matter. Perhaps the state is seeking some retrenchment from the two-step procedure in Outlaw, for the court of appeals thought the state seemed to confuse the distinction between the first and second steps under Outlaw. (¶13 n.3). Practitioners litigating informant disclosure issues should keep an eye on this case.

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