SJC ALLOWS DISCLOSURE OF CONFIDENTIAL INFORMANT

The police often use civilian confidential informants in its investagations.  Many, if not most, confidential informants, have a personal motive for cooperating with the police.   It is noly fair that someone charged with a crime should have the opportunity to investigate those motives to build a defense.

In Commonwealth v. Forlizzi, the SJC affirmed the single justice’s denial of the Commonwealth’s petitionfor relief from the trial judge’s “order requiring the Commonwealth to disclose whether a witness cooperating against Forlizzi previously had served as a confidential informant or cooperating witness.” The “judge concluded that prior cooperation by the witness could be relevant to demonstrating the witness’s bias or hope of benefit or reward. The single justice considered the judge’s order and held that ‘no abuse of discretion was evident in the judge’s decision that disclosure [was] necessary and material to the defense,’” where “‘the informant was a percipient witness whose testimony will form a key part of the Commonwealth’s case at trial.’”

In its decision, the SJC stated, “We will review interlocutory matters in criminal cases only when ‘substantial claims’ of ‘irremediable’ error are presented … and only in ‘exceptional circumstances’ … where ‘it becomes necessary to protect substantive rights’. In this case, the single justice properly could have denied review because the Commonwealth failed to demonstrate the presence of exceptional circumstances.” In so ruling, the Court rejected the Commonwealth’s argument “that disclosure of the identity of a confidential informant ordinarily is privileged … and that the … judge failed to make findings sufficient to overcome that privilege.” The Court explained that “while the Commonwealth expressed concern that disclosure of the information might discourage future witnesses from cooperating, and that any value the evidence might have was either marginal or cumulative, the Commonwealth failed to make a sufficient showing that these concerns present ‘exceptional circumstances.’” The Court noted that the judge’s determination that disclosure would assist the defense was “precisely the type of routine interlocutory ruling for which review ordinarily is not warranted.”

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