The law in New Jersey allows the government to resist disclosing the identity of confidential informers absent exceptional circumstances.  One exception to this general rule is where the informant was a direct participant in the criminal act. The purposes of the so-called informer’s privilege is to encourage  citizens to provide law enforcement agents with information relating to criminal activity without fear of retaliation.

In a recent drug prosecution, the government initially identified an informant as R.B. and refused disclosure.  During the defendant’s investigation of the government’s accusations, he obtained a statement from an individual that exonerated the defendant. The statement was provided to the government during the discovery exchanges in the case.  In the defendants’s opening comments to the jury, he disclosed the existence of this witness and the exculpating statement. In the government’s opening statement, however, the prosecutor disclosed to the jury that the anticipated defense witness that provided the favorable statement was in fact the confidential informant and that the confidential informant would testify at trial. Defense counsel was completely surprised especially in light of the government’s prior position not to disclose the identity of the informant.

Analyzing this issue, the court characterized the case as “unusual”.  It concluded that the timing of the disclosure of the confidential informant indicated that the government calculated that decision in such a way as to create a fundamental unfairness to the defendant.  As a result, a mistrial should have been granted or a substantial continuous authorized.