Chapter 63: Motion to Disclose Informant's Identity

[1] USSC: McCray v.
Illinois (1967) 386 US 300, 307 ["the informer is a vital
part of society's defensive arsenal"]; On Lee v.
US (1952) 343 US 747, 756 ["Society can ill afford to throw
away the evidence produced by the falling out, jealousies, and
quarrels of those who live by outwitting the law."]; US
v. White (1971) 401 US 745, 752 ["Inescapably, one
contemplating illegal activities must realize and risk that his
companions may be reporting to the police."]. CAL:
P v. Pacheco (1972) 27 CA3 70, 81 [the "informer
system" is "regarded as a necessity for law enforcement and which
has existed from the very beginning of police work."].
9th CIR: US v. Bernal-Obeso (9C 1993)
989 F2 331, 335 ["Without informants, law enforcement authorities
would be unable to penetrate and destroy organized crime
syndicates, drug trafficking cartels, bank frauds, telephone
solicitation scams, public corruption, terrorist gangs, money
launderers, espionage rings, and the likes."];
US v. Simpson (9C 1987) 813 F2 1462, 1464 ["It is
unrealistic to expect law enforcement officers to ferret out
criminals without the help of unsavory characters."].

[2] CAL: Evid. Code§ 1041(a)(2);
P v. Hobbs (1994) 7 C4 948, 962 ["if disclosure of
the contents of the informant's statement would
tend to disclose the identity of the informer, the
communication itself should come within the privilege"];
P v. Superior Court (Biggs) (1971) 19 CA3 522, 532
["There is a recognized public interest in shielding the anonymity
of narcotics informers."]. 9th CIR: US v.
Napier (9C 2006) 436 F3 1133, 1136 ["[The privilege]
protects more than just the name of the informant and extends to
information that would tend to reveal the identity of the
informant."]. OTHER: US v. Dennis (2C
1950) 183 F2 201, 224 ["it is usually necessary to rely upon
[informants] or upon accomplices because the criminals will almost
certainly proceed covertly"]. ALSO SEE: Pen. Code§
964.

[3] CAL: Evid. Code§ 1041(a) [the
information must have purported "to disclose a violation of the
law"]; P v. Lanfrey (1988) 204 CA3 491, 497 ["an
'informer' is one who furnishes information purporting to disclose
a violation of law"].

[4] CAL: P v. Bradley (2017) 7
CA5 607, 619 ["Nothing in the [nondisclosure] statute limits its
application to disclosures regarding a particular person."].

[5] CAL: Evid. Code§ 1041(b);
P v. Guereca (1987) 189 CA3 884, 889 [a person was
not an informant when he did not know that the person he was
talking with was an officer].

[6] CAL: Evid. Code§ 1041(b);
P v. Lanfrey (1988) 204 CA3 491, 497 ["The privilege
applies only if the information is furnished in confidence"].

[7] USSC:
McCray v. Illinois (1967) 386 US 300, 308 ["[An informant]
will usually condition his cooperation on an assurance of
anonymity"]; Roviaro v. US (1957) 353 US 53, 60 ["the
purpose of the privilege is to maintain the Government's channels
of communication by shielding the identity of an informer from
those who would have cause to resent his conduct"]. CAL:
P v. Otte (1989) 214 CA3 1522, 1531 ["The
confidentiality of which [the privilege] speaks is the public
interest in the confidentiality of the informant's identity for
purposes of effective law enforcement."].

[8] CAL: P v. Otte (1989)
214 CA3 1522, 1531; P v. Seibel (1990) 219 CA3 1279, 1289
["And in the big-time drug business, to inform is to sign one's
death warrant."]; P v. Lee (1985) 164 CA3 830, 835 ["The
rationale for the privilege is a strong public interest in
encouraging people to report illegal activities. Informants may be
hesitant to cooperate if they believe they will be exposed to the
danger of physical reprisals"].

[9] CAL: P v.
Callen (1987) 194 CA3 558, 563; P v.
Maury (2003) 30 C4 342, 386 ["The promise of anonymity is
offered [by anonymous witness programs] only for the purpose of
inducing reluctant informers to provide information which assists
in this primary purpose. The inducement derives from the
protection from publicity or retaliation that the informer
receives by remaining anonymous."].

[10] CAL: P v.
Lanfrey (1988) 204 CA3 491, 498 [an eyewitness provided
information "in confidence" when he "requested that his identity
remain confidential."].

[11] USSC: Roviaro v.
US (1957) 353 US 53, 67 (dis. opn. of Clark, J.)
["Experience teaches that once this policy [of nondisclosure] is
relaxed—even though the informant be dead—its effectiveness is
destroyed."]. CAL: P v. Bradley (2017) 7 CA5 607,
623 ["A defendant who knows the identity of the informer, however,
will ordinarily not be prejudiced by a refusal to disclose that
identity."]; P v. Otte (1989) 214 CA3 1522, 1534,
fn.7 ["The public policy of nondisclosure of the identity
of narcotics informants is paramount to the interest of any one
particular informant. The public policy applies even if the
informant is known to the defendant, and even if the informant is
dead."].

[12] CAL: Evid. Code§ 1041(a)(2).

[13] QUOTE FROM: Roviaro v.
US (1957) 353 US 53, 60.

[14] USSC: Roviaro v.
US (1957) 353 US 53, 60-61 [disclosure is required if it
would be "relevant and helpful to the defense of an accused, or is
essential to a fair determination of a cause."]. CAL:
P v. Bradley (2017) 7 CA5 607, 624 ["If the trial court
determines there is not a reasonable possibility the informant's
evidence on the issue of guilt might exonerate the defendant,
disclosure is denied."]; P v. Garcia (1967) 67 C2
830, 840 [the defendant must demonstrate "a reasonable possibility
that the [informant] could give evidence on the issue of guilt
which might result in defendant's exoneration."]; P v.
Long (1974) 42 CA3 751, 757 [an informant is material if
his "testimony might, when taken together with other evidence,
tend to raise a reasonable doubt ... which would result in the
defendant's exoneration."]; Evid. Code§ 1042(d) [an informant
is a material witness if there is a "reasonable possibility that
nondisclosure might deprive the defendant of a fair trial."].

[15] CAL: Williams v.
Superior Court (1974) 38 CA3 412, 420 ["Where the evidence
indicates that the informer was an actual participant in the crime
alleged, or was a nonparticipating eyewitness to that offense,
ipso facto it is held he would be a material witness"]:
P v. Tolliver (1975) 53 CA3 1036, 1043 ["Obviously,
the participant-informant presents the clear-cut example of an
informant who is a material witness on the issue of guilt or
innocence."]; Price v. Superior Court (1970)
1 C3 836, 842 ["The People do not dispute that, if Price had shown
that the informer was a witness at the scene of the crime,
disclosure of identity or dismissal would be required."];
P v. Ruiz (1992) 9 CA4 1485, 1487 ["the CI's
in camera testimony is essential because he was an
eyewitness to the alleged transaction"].

[16] EXAMPLES: The courts have ruled
that an informant was a prima facie material witness in the
following situations:

• The defendant was charged with selling drugs to the CI. See
Roviaro v. US (1957) 353 US 53, 64 ["This is a case where
the Government's informer was the sole participant, other than the
accused, in the transaction charged."]; Eleazer v.
Superior Court (1970) 1 C3 847, 851 ["[The informant] was
both an eyewitness to, and participant in, the sale of seconal and
without question was a material witness on the issue of guilt."];
P v. Cheatham (1971) 21 CA3 675, 677-78
["Since [the informant] was not only a witness to, but a direct
participant in, the sale herein involved, it was obvious that she
was a witness whose identity must be revealed."];
Sorrentino v. US (9C 1947) 163 F2 627, 628-29
["[The informant] was the person to whom appellant was said to
have sold and dispensed the opium"].

• The informant was present when the defendant sold drugs to
an undercover officer or other person. See P v.
Lee (1985) 164 CA3 830, 840 ["only the informant could
testify as to whether defendant personally had been selling PCP,
whether she or another or others exercised dominion and control
over the drugs and the nature and extent of the informant's
personal knowledge of these matters"]; P v.
Goliday (1973) 8 C3 771, 775 [informant and an undercover
officer were present when the sale occurred]; P v.
Ruiz (1992) 9 CA4 1485 [informant was present when
defendant sold drugs to an undercover officer]; P
v. Guereca (1987) 189 CA3 884, 889 ["[The informant]
was a material witness on guilt, at least as to the sales
transaction which occurred in his presence."].

• The informant was present when an undercover officer sold
illegal firearms to the defendant. P v.
Rios (1977) 74 CA3 833, 837.

• The defendant was charged with attempted murder, and there
was a reasonable possibility that the informant was present when
the crime occurred. See Price v.
Superior Court (1970) 1 C3 836, 842 ["The People do not
dispute that, if Price had shown that the informer was a witness
at the scene of the crime, disclosure of identity or dismissal
would be required."].

[17] CAL: P v. Bradley (2017) 7
CA5 607, 627 [the informant's testimony "would not have benefited
defendant. It would have harmed him."];
P v. Alderrou (1987) 191 CA3 1074.

[18] CAL: P v.
Hardeman (1982) 137 CA3 823, 828 ["The courts have
indicated that the measure of the 'reasonable possibility'
standard ... is predicated upon the relative proximity of the
informant to the offense charged."]; P v. Lee (1985)
164 CA3 830, 836 ["A nonparticipant informant can be a material
witness ... even when such informant was not an eyewitness to the
alleged criminal act."].

[19] EXAMPLES: The following are
examples of stale information:

• "The informant's observations occurred at least five days
prior to [the search]. We think it clear, then, that the proximity
of the informant to the charged offense is not close, not recent,
and that the nexus of the informant's relationship to the charged
crime is minimal." P v. Fried (1989) 214 CA3 1309, 1316.
ALSO SEE: P v. Hardeman (1982) 137 CA3 823, 829 [8
days]; P v. Martin (1969) 2 CA3 121, 127 [3 days];
P v. Duval (1990) 221 CA3 1105, 1114 ["several days"];
P v. Alvarez (1977) 73 CA3 401, 408 [within the last seven
days]; P v. Hambarian (1973) 31 CA3 643 [5 days];
P v. Thompson (1979) 89 CA3 425 [more than a week].

• "Defense counsel did not explain how this informant, whose
last contact with the defendant was before November 3 would
possibly be able to give evidence on defendant's reason for
possessing marijuana on November 19," edited];
P v. Otte (1989) 214 CA3 1522, 1536.

• "The affidavit states the informer saw marijuana in the
apartment 11 days before the search, not that he was a percipient
witness to the particular possession of contraband disclosed by
the search." P v. Sewell (1970) 3 CA3 1035, 1039.

[20] CAL: P v.
Hobbs (1994) 7 CA4 948, 959 "It has long been the rule in
California that the identity of an informant who has supplied
probable cause for the issuance of a search warrant need not be
disclosed where such disclosure is sought merely to aid in
attacking probable cause."]; P v. Keener (1961) 55
C2 714, 723 ["where a search is made pursuant to a warrant valid
on its face, the prosecution is not required to reveal the
identity of the informer in order to establish the legality of the
search"]; P v. Hardeman (1982) 137 CA3 823, 830 ["A
request by respondent to disclose the informant's identity based
on an attack against the probable cause would necessarily fail."];
Cooper v. Superior Court (1981) 118 CA3 499,
509; P v. Navarro (2006) 138 CA4 146, 176 ["If the
informant was not a material witness on the issue of guilt and the
defendant seeks to learn his identity in order to challenge a
facially valid search warrant based on information provided by the
informant, the informant's identity need not be disclosed."];
P v. Martinez (2005) 132 CA4 233, 240 ["courts are
not required to disclose the identity of an informant who has
supplied probable cause for the issuance of a search warrant where
such disclosure is sought merely to aid in attacking probable
cause"]. OTHER: US v. Ortega (5C 2017) 854 F3 818,
825 ["Although [the CI's] information was used to obtain the
search warrant, the CI did not actively participate in the search
and, thus, was not a witness to the charged offense."].

[21] USSC: McCray v.
Illinois (1967) 386 US 300. CAL: Evid. Code§
1042(c); Parsley v. Superior Court (1973) 9 C3 934;
In re Robert B. (1985) 172 CA3 763, 768-69;
Cooper v. Superior Court (1981) 118 CA3 499, 506-7.

[22] CAL: P v.
Garcia (1967) 67 C2 830, 836 ["A mere informer has a
limited role. [He] simply points the finger of suspicion toward a
person who has violated the law. He puts the wheels in motion
which cause the defendant to be suspected and perhaps arrested,
but he plays no part in the criminal act with which the defendant
is later charged." Quoting from P v. Lawrence (1957)
149 CA2 436, 450]; P v. Blouin (1978) 80 CA3 269,
287 ["[The informant] simply triggered an investigation by
reporting a suspicious situation ... Defendant's participation in
the crime itself was revealed by subsequent police investigation
without resort to further information from the informant."];
P v. Hobbs (1994) 7 CA4 948, 959; P v.
Seibel (1990) 219 CA3 1279, 1288-89. OTHER:
US v. Leonard (7C 2018) 884 F3 730, 735 ["mere tipster"].

[23] CAL: In re Benny S. (1991)
230 CA3 102, 108 ["If the informer is not a percipient witness to
the events which are the basis of the arrest, it is highly
unlikely that he can provide information relevant to the guilt or
innocence"]; Williams v.
Superior Court (1974) 38 CA3 412, 420 ["when the informer
is shown to have been neither a participant in nor a
nonparticipant eyewitness to the charged offense, the possibility
that he could give evidence which might exonerate the defendant is
even more speculative and, hence, may become an unreasonable
possibility"]; P v. McCoy (1970) 13 CA3 6, 12 ["The
informant's function, in informing the police of his observations,
was limited to pointing the finger of suspicion at those persons
residing at the ranch and furnishing the requisite information for
the issuance of the search warrant."].

[24] CAL: P v. Alderrou (1987)
191 CA3 1074, 1081 ["it is important to bear in mind what offense
appellant was found to have committed"].

[25] CAL: P v. Borunda (1976) 58
CA3 368, 375 ["Furthermore, heroin was found not only at
[defendant's home] but also in defendant's shirt pocket. There is
no possibility the informant could give testimony exonerating
defendant of possession of that heroin."];
P v. Acuna (1973) 35 CA3 987, 991 ["on [defendant's] person
in his pants pocket were three balloons of heroin"];
P v. Rogers (1976) 54 CA3 508, 518-19 ["Defendant was
charged with possession for sale based on his personal possession
of heroin when arrested; neither the informant nor Linda could
have furnished relevant information."];
P v. Flemmings (1973) 34 CA3 63, 68 ["the evidence showed
that defendant was carrying in his hand a blue plastic bag
containing heroin, which he dropped when confronted by the
police"]. EXAMPLES: The following are examples of
situations in which a CI was deemed a material witness:

• The drugs were "found in the pocket of the jacket appellant
was wearing." In re Benny S. (1991) 230 CA3 102, 108-9.
Also see P v. Acuna (1973) 35 CA3 987, 991 ["defendant was
in the apartment and on his person in his pants pocket were three
balloons of heroin which he had for the purpose of sale. Such
evidence establishes every element of the offense of possession
for sale of a narcotic].

• The defendant threw a heroin-filled balloon from his car
during a pursuit instigated by information from informant.
P v. Garcia (1970) 13 CA3 486, 490.

•The defendant was carrying in his hand a blue plastic bag
containing heroin, which he dropped when confronted by the
police." P v. Flemmings (1973) 34 CA3 63, 68.

[26] CAL: P v.
Goliday (1973) 8 C3 771, 783-84 ["the large quantity of
narcotics found in the defendant's apartment raised an inference
that defendant intended to sell them"]; P v.
Alderrou (1987) 191 CA3 1074, 1081 [possession for sale was
established by "the quantity of cocaine found in appellant's
possession combined with the scales, cutting compound, and other
apparatus and supplies he also possessed which are typically
associated with cocaine intended for sale rather than for person
use."]; P v. Borunda (1976) 58 CA3 368, 376
["defendant's guilt of possession for sale of that marijuana was
established based on the quantity involved and independent of
anything the informant might testify"]; P v.
Dimitrov (1995) 33 CA4 18, 31; P v.
Aguilera (1976) 61 CA3 863, 870, fn.7 ["In fact it is
arguable that even if the informant could testify that someone
other than defendant was engaged in sales at the residence, it
would be irrelevant and could not help defendant, since the charge
was based on a commercial quantity, commercially packaged, which
she held in her own hand."]; P v. Acuna (1973) 35
CA3 987, 992 [because intent to sell was based solely on the drugs
that were carried by the defendant, it would have been irrelevant
that "the defendant was not involved in the prior sale between
[the informant] and codefendant Alford eight days before, or that
defendant was a mere visitor to the apartment, or that he had
purchased narcotics at the apartment several times before and had
never seen defendant on any of those occasions, or that
codefendant Alford was the only resident of the apartment during
the time preceding the search"]. 9th CIR: US
v. Decoud (9C 2006) 456 F3 996, 1009 ["the
informant's non-knowledge would have done little to refute the
government's otherwise persuasive evidence of Israel's affirmative
involvement in the conspiracy"]. OTHER:
US v. Cruz (10C 2012) 680 F3 1261, 1263 ["the crime charged
was possession on the date of arrest of a large amount of the drug
with intent to sell it"].

[27] CAL: CALCRIM 2304 [constructive
possession can occur only if the defendant knew that the
contraband was present in the location where officers discovered
it and he had control over it]. NOTE: Constructive
possession is possession "imputed to the defendant by reason of
the location at which the contraband is discovered."
Williams v. Superior Court (1974) 38 CaA3 412, 423.

[28] CAL: P v.
Alvarez (1977) 73 CA3 401, 406 ["In fact, defendant
admitted to the officers that everything they found was his."];
P v. Alderrou (1987) 191 CA3 1074, 1077 ["Appellant
told the officer his girl friend had nothing to do with the
cocaine and everything in the bedroom related to narcotics
belonged to him."]; P v. Martin (1969) 2 CA3 121,
124 ["defendant admitted that he lived in the apartment [where the
drugs were found] and owned a certain suit in the pocket of which
contraband was found"]; P v. Thomas (1975) 45 CA3
749, 755 [defendant admitted the heroin "was his."].

[29] CAL: P v.
Thompson (1979) 89 CA3 425, 433 ["Defendant's connection
with the house and the heroin on the date of the arrest was
overwhelmingly established by the observations of the officers,
unrelated to any information provided by the informant. The
identity of the informant was totally irrelevant."];
P v. Ingram (1978) 87 CA3 832, 837 ["There is a direct
conflict concerning whether defendant resided in apartment 107."].

[30] CAL: P v.
Goliday (1973) 8 C3 771, 783. ALSO SEE:
P v. Martin (1969) 2 CA3 121, 128 [officer could
smell burnt marijuana inside the defendant's apartment, and
defendant admitted living there].

[31] CAL: P v.
Alderrou (1987) 191 CA3 1074, 1081 ["Defendant's
possession, dominion and control of these narcotics was proved
rather conclusively by the fact they were found in a safe opened
with a key taken from a case containing his papers and only his
papers."]; P v. Green (1981) 117 CA3 199, 208 ["the key
seized from defendant's belt opened the door to the storeroom."];
P v. Galante (1983) 143 CA3 709, 711 ["appellant had the
key to the locked cabinet [in which cocaine was found] in his
possession when arrested"].

[32] CAL: P v.
Thompson (1979) 89 CA3 425, 433.

[33] 9th CIR:
US v. Henderson (9C 2001) 241 F3 638, 646 [defendant was
positively identified by witnesses, plus he was captured in
mid-holdup by a bank surveillance camera].

[34] CAL: P v.
Lizarraga (1990) 219 CA3 476, 479. ALSO SEE:
P v. Green (1981) 117 CA3 199, 208 [the drugs were
"accompanied by a business card bearing defendant's name and
occupation"].

[35] CAL: P v.
Thomas (1975) 45 CA3 749, 755.

[36] CAL: P v.
Hardeman (1982) 137 CA3 823, 829 [the informant said the
sales "which he observed were conducted by a single individual,
the respondent, and not in a joint manner."]; P v.
Thomas (1975) 45 CA3 749, 754 ["the informant told the
police that he was present at the residence of defendant and saw
high grade heroin in defendant's possession there"]; P v.
Thompson (1979) 89 CA3 425, 428 [informant identified the
defendant]; P v. Hardeman (1982) 137 CA3 823, 829
[the only person informant saw selling drugs was the defendant].

[37] CAL:
Williams v. Superior Court (1974) 38 CA3 412, 423 ["Where
possession of contraband is among the elements of the crime
charged and it is imputed to the defendant by reason of the
location at which the contraband is discovered by the police, and
where such discovery stems in whole or part from an informer's
very recent observation of contraband on those same premises, the
Supreme Court has compelled disclosure of the informer's identity
if the evidence shows that persons other than the defendant were
on the premises when the informer observed the contraband and that
the defendant was not then present or may not have been
present."]; P v. Long (1974) 42 CA3 751, 755 [the evidence
that defendant lived in the apartment was weak];
P v. Viramontes (1978) 85 CA3 585, 591-92 ["the People had
little evidence, besides the fact that defendant was seen at the
apartment and was later arrested there, that would tend to
establish that he did in fact reside [there]"];
P v. Garcia (1967) 67 C2 830, 839 [people other than Garcia
were named in the affidavit as the sellers which was "consistent
with the claim of defendant at trial that he was a visitor at the
apartment"]; Honore v. Superior Court (1969) 70 C2 162,
168-69 [defendant was in jail shortly before the drugs were
discovered; in addition, while she was in jail, the informant had
seen other people in the apartment]; P v. Ingram (1978) 87
CA3 832, 837 ["There is a direct conflict concerning whether
defendant resided in apartment 107."]; P v. Lamb (1972) 24
CA3 378, 382 ["it might have developed that the sales were made by
someone other than defendant and that defendant was only a user
and not a seller"]. 9th CIR: US v Spires (9C 1993) 3
F3 1234, 1238-39. COMPARE: P v. Alvarez (1977) 73
CA3 401, 407 ["Here there is no evidence the informer ever saw
more than one person at the premises or in control of
contraband."].

[38] CAL: P v. Hambarian (1973)
31 CA3 643, 659 ["Conviction need not be predicated upon exclusive
possession, and a showing of nonexclusive possession would not
exonerate defendant."]; P v. Green (1981) 117 CA3 199, 208;
P v. Galante (1983) 143 CA3 709, 712 ["the fact that
appellant's past possessions of contraband may not always have
been exclusive did not justify the requested [disclosure] order"].

[39] CAL: P v. Alvarez (1977) 73
CA3 401, 406 ["If disclosure of the informant's identity were
compelled in this case, it would be compelled in almost any case
where the informant made a controlled buy of heroin and the police
thereafter found heroin on the defendant's person or in his
apartment."].

[40] CAL: Evid. Code§ 1042(d)
["the court shall conduct a hearing at which all parties may
present evidence on the issue of disclosure"];
P v. Alderrou (1987) 191 CA3 1074, 1079 ["the trial judge
complied with the procedures outlined in the Evidence Code. It
first held an open, adversary hearing"]; P v. Rios (1977)
74 CA3 833, 839 ["the court shall conduct a hearing at which the
parties may present evidence"].

[41] CAL: P v. Lawley (2002) 27
C4 102, 159 ["The defendant bears the burden of adducing some
evidence on this score."]; P v. Hardeman (1982) 137
CA3 823, 828 ["This burden is met only where the defendant
demonstrates through 'some evidence' that [the informant is
material]."]; P v. Otte (1989) 214 CA3 1522, 1535;
P v. Oppel (1990) 222 CA3 1146, 1152 ["It is
incumbent on the defendant to make a prima facie showing for
disclosure before an in camera hearing is appropriate."];
P v. Sewell (1970) 3 CA3 1035, 1039 [defendant must
demonstrate a "reasonable possibility"];
In re Tracy J. (1979) 94 CA3 472, 477 ["defendant must
demonstrate a "reasonable possibility"].

[42] QUOTE FROM: P v.
Tolliver (1975) 53 CA3 1036, 1044. CAL: P v.
Galante (1983) 143 CA3 709, 711 ["[The defendant's
attorney], not feeling constrained by any consideration for
reality, posited various mutually inconsistent hypotheses that
might, theoretically, explain how a person could conceivably find
himself in appellant's position without necessarily being guilty
of the offense charged. It was never once suggested, however, that
there was a basis in fact for any of these musings nor that
appellant himself claimed that any of them were true."];
P v. Alderrou (1987) 191 CA3 1074, 1083 ["Indeed one
would have to engage in wild speculation about convoluted
improbable plots to come up with a scenario which would produce
testimony from his confidential informant tending to exonerate
this appellant of this offense."]; P v. Green (1981)
117 CA3 199, 208 ["defendant's showing must encompass more than
speculation"]; In re Robert B. (1985) 172 CA3 763, 770
["Robert presented only the bare, unsupported speculation that the
informer may have been able to offer exonerating testimony, but
failed to provide any evidentiary basis for raising this mere
speculation to the 'reasonable possibility' which would entitle
him to disclosure."]; P v. Fried (1989) 214 CA3
1309, 1314 ["defendant's offer of proof was inadequate to
establish a prima facie case for disclosure ... there simply was
no need for the magistrate to conduct an in camera hearing
in the first instance"]; P v. Alvarez (1977) 73 CA3
401, 406 [unsupported claim that police "planted" the evidence was
insufficient]. 9th CIR: US v.
Henderson (9C 2001) 241 F3 638, 645 [defendant must "show
more than a mere suspicion that the informant has information
which will prove 'relevant and helpful' to his defense, or that
will be essential to a fair trial."]. OTHER:
US v. Cruz (10C 2012) 680 F3 1261, 1263 [courts that refuse
such motions "generally find that the value of the informant to
the defense is speculative or irrelevant"].

[43] CAL: P v.
Blouin (1978) 80 CA3 269, 288 ["The showing is not as to
what [the informant] would testify but as to what he might
testify."]; P v. Tolliver (1975) 53 CA3 1036, 1044
[the defendant need not "demonstrate a reasonable possibility of
the exact testimony the informant is expected to give. Such a
requirement would impose an insuperable task."]. 9th CIR:
US v. Spires (9C 1993) 3 F3 1234, 1238.

[44] CAL: P v.
Tolliver (1975) 53 CA3 1036, 1044 ["the affidavit to
support the search warrant that recites the informant's
communication to the police officer is considered admissible
evidence for this purpose"]; P v. Hardeman (1982)
137 CA3 823, 829 [court considers affidavit]; P v.
Otte (1989) 214 CA3 1522, 1536 ["[Defendant] may rely upon
reasonable inferences from the People's evidence"]; P v.
Alvarez (1977) 73 CA3 401, 406 [defendant "may instead rely
upon reasonable inferences from the People's evidence."].

[45] CAL: P v.
Oppel (1990) 222 CA3 11461153 ["We hold that the affidavit
of an attorney for a party, made on information and belief,
cannot, as a matter of law, be construed to be evidence"];
P v. Fried (1989) 214 CA3 1309, 1315.

[46] CAL: P v.
Tolliver (1975) 53 CA3 1036, 1044. [defendant's testimony
"is not a necessary ingredient to obtain disclosure."].

[47] CAL: P v.
Tolliver (1975) 53 CA3 1036, 1048 ["a specific articulation
of a defense is not required"].

[48] QUOTE FROM: P v.
Allen (1980) 101 CA3 285, 289.

[49] CAL: Evid. Code§ 1042(d)
["the court shall conduct a hearing at which all parties may
present evidence on the issue of disclosure"]; P v.
Alderrou (1987) 191 CA3 1074, 1079 ["the trial judge
complied with the procedures outlined in the Evidence Code. It
first held an open, adversary hearing"]; P v.
Rios (1977) 74 CA3 833, 839 ["the court shall conduct a
hearing at which the parties may present evidence"].

[50] USSC: Roviaro v.
US (1957) 353 US 53, 61 ["In these situations the trial
court may require disclosure and, if the Government withholds the
information, dismiss the action."]. CAL: P v.
Hobbs (1994) 7 C4 948, 959 ["the People must either
disclose his identity or incur a dismissal"]; P v.
Lawley (2002) 27 C4 102, 159 ["prosecution must disclose
the name of an informant who is a material witness in a criminal
case or suffer dismissal of the charges against the defendant"].

[51] CAL: P v.
Viramontes (1978) 85 CA3 585, 593. COMPARE:
In re Tracy J. (1979) 94 CA3 472, 478.

[52] CAL: P v. Gooch (1983) 139
CA3 342, 345 ["There was no oath ever administered to the
informant here."]; P v. Lee (1985) 164 CA3830, 834.

[53] QUOTE FROM:
The New Shorter Oxford English Dictionary (4th ed. 1993) p.
1333. ALSO SEE: Blacks Law Dict. (4th ed.
1951) p. 892 ["In camera": "In chambers, private. A cause
is said to be heard in camera either when the hearing is
had before the judge in his private room or when all spectators
are excluded from the courtroom."].

[54] CAL: P v.
Aguilera (1976) 61 CA3 863, 868 [the procedure "allows the
prosecutor to produce the informant in camera so that the
court can determine just what the informant knows"]; P v.
Reel (1979) 100 CA3 415, 420 ["The in camera hearing
is a highly advantageous procedure providing an expanded
evidentiary base for the trial court's determination."]; Evidence
Code§ 915(b) ["If the judge determines that the information
is privileged, neither the judge nor an other person may ever
disclose, without the consent of a person authorized to permit
disclosure, what was disclosed in the course of the proceedings in
chambers."].

[55] QUOTE FROM: P v.
Aguilera (1976) 61 CA3 863, 868 [the
in camera procedure "is highly advantageous and provides a
method of eliminating the 'guessing game' qualities which often
attend these determinations."]. CAL: P v.
Blouin (1978) 80 CA3 269, 288 ["the speculative possibility
that the informant might possess exculpatory information could
well have been investigated by an in camera hearing"].
9th CIR: US v. Spires (9C 1993) 3 F3
1234, 1238 ["favored procedure"]. ALSO SEE:
P v. Viramontes (1978) 85 CA3 585, 591 ["[The
problem] is in determining what constitutes a 'reasonable
possibility,' and in trying to ascertain, prior to an informant's
testimony, what he 'might' testify to if he were forced to come
forth with his story."].

[56] CAL: P v.
Hobbs (1994) 7 C4 948, 973 ["The prosecutor may be present
at the in camera hearing"]; Cooper v.
Superior Court (1981) 118 CA3 499, 504; P v.
Gooch (1983) 139 CA3 342, 344.

[57] CAL: P v.
Hobbs (1994) 7 C4 948, 973 ["defendant and his counsel are
to be excluded unless the prosecutor elects to waive any objection
to their presence"].

[58] CAL: P v.
Galante (1983) 143 CA3 709, 712 ["The most startling aspect
of this in camera hearing was the decision by the
magistrate to allow defense counsel to participate therein
telephonically. Such a procedure was, of course, extraordinarily
dangerous and one that we trust will never again be repeated."].

[59] CAL: P v.
Hobbs (1994) 7 C4 948, 973 ["precautions must be taken to
protect [the informant's] identity, including the holding of the
in camera hearing at a place other than the courthouse if
deemed necessary to guarantee the informant's anonymity"].
OTHER: State v. Richardson (Ct. 1987)
529 A2 1236, 1241 ["The defendant or his criminal associates may
through a variety of means learn when the [in camera
hearing] is taking place, and observe those who enter the
courthouse at that time."].

[60] NOTE:
In camera hearing via telephone: The following procedure
may be used if the CI is unable to testify in person: The CI will
go a secure location, such as a police station in another
jurisdiction. Telephone contact will then be made with the court,
where the judge, prosecutor, investigating officer, and court
reporter will listen on a speakerphone, usually in the judge's
chambers. An officer with the CI will videotape his testimony.
After the judge swears the CI, the hearing will begin, with the
prosecutor eliciting from the CI exactly what he saw or heard. In
order to better evaluate the CI's credibility, the court may delay
making a decision until he or she can view the videotape. See
P v. Flannery (1985) 164 CA3 1112, 1115, 1121;
P v. Hobbs (1994) 7 C4 948, 973, fn.8 ["We agree
with the Flannery court's observations concerning the
videotaping procedure utilized therein"]. ALSO SEE:
Skelton v. Superior Court (1969) 1 C3 144, 153.

[61] CAL: P v.
Hobbs (1994) 7 C4 948, 973 ["Defense counsel should be
afforded the opportunity to subject written questions, reasonable
in length, which shall be asked by the trial judge of any witness
called to testify at the proceeding."]; Torres v.
Superior Court (2000) 80 CA4 867, 874 ["petitioner should
be given an opportunity to propose questions to be asked at the
in camera hearing"].

[62] CAL: P v.
Alderrou (1987) 191 CA3 1074, 1079 ["Neither expressly nor
by implication does [the Evidence Code] require the
confidential informant to be present or to testify at the
in camera hearing."]; P v. Lee (1985) 164 CA3
830, 840 [not error to conduct in camera hearing without
informant]; P v. Fried (1989) 214 CA3 1309, 1314.

[63] CAL: P v.
Coleman (1977) 72 CA3 287, 298 ["The only evidence
presented as to the expected testimony of the informer is the bald
opinion of [the officer] that the informer could not say anything
that would aid the defense. The opinion is unsupported by factual
recitation of its basis. The unsupported opinion is not competent
to prove anything."]; P v. Ruiz (1992) 9 CA4 1485,
1489 ["The materiality of the CI's possible testimony cannot be
determined by a peace officer's characterization of the eyewitness
CI's knowledge of the incident and the CI's reliability and
credibility."]; P v. Lee (1985) 164 CA3 830, 840
["only the informant could testify as to whether defendant
personally had been selling PCP, whether she or another or others
exercised dominion and control over the drugs and the nature and
extent of the informant's personal knowledge of these matters"].
ALSO SEE: 2 Jefferson, Evidence Benchbook (2d ed.
1982) p. 1576 ["if an in camera hearing is held and the
prosecutor does not produce the informer to testify, the
prosecutor gambles on whether the evidence presented will satisfy
the trial judge that the informer could not possibly give
exonerating evidence. ¶ Experience indicates that only in the rare
case are police officers or others able to offer competent
evidence to obviate the necessity of the informer appearing and
testifying"].

[64] CAL: P v.
Gooch (1983) 139 CA3 342, 345.

[65] CAL: P v.
Estrada (2003) 105 CA4 783, 796 ["the trial court retains
considerable discretion in terms of what it will review
in camera"].

[66] CAL: Evid. Code§ 1042(d) ["A
reporter shall be present at the in camera hearing. Any
transcription of the proceedings at the in camera hearing,
as well as any physical evidence presented at the hearing, shall
be ordered sealed by the court"]; Torres v.
Superior Court (2000) 80 CA4 867, 874 ["In order to protect
petitioner's right to appellate review, the trial court can and
should exercise its inherent power to order that the proceedings
be recorded and transcribed and that the transcript be sealed."];
Cooper v. Superior Court (1981) 118 CA3 499,
505, fn.3 ["Transcripts of the in camera hearings were
ordered sealed, became part of the record and have been reviewed
by this court."].

[67] QUOTE FROM: Eleazer v.
Superior Court (1970) 1 C3 847, 851. CAL:
P v. Goliday (1973) 8 C3 771. COMPARE: P v. Hernandez (1978) 84 CA3 408, 411.

[68] CAL: Eleazer v.
Superior Court (1970) 1 C3 847, 851 ["The 'reasonable
effort' required will, of course, depend on the facts of each
case. If the informer has a regular abode and place of employment,
simply obtaining his address and phone number may suffice; if he
is transient, or conceals his address, the law enforcement agency
probably should make some arrangements for maintaining close
communication with him."]; Twiggs v.
Superior Court (1983) 34 C3 360, 365-66; P v.
Cheatham (1971) 21 CA3 675, 678, fn.3 [police efforts to
keep track of the informant were sufficient, especially because
"they were rendered fruitless by [the informant's] deceptive
statements to the police and to the refusal of her friends to
cooperate in locating her."]; P v. Goliday (1973) 8
C3 771, 782 ["The police must undertake reasonable efforts to
obtain information by which the defense may locate such an
informer."].

[69] CAL: P v.
Rios (1977) 74 CA3 833.

[70] CAL: P v.
Lamb (1972) 24 CA3 378, 382 ["there was ample and
admissible evidence of possession. The most that the informer
could have done for defendant would have been to cast doubt on the
defendant's status as a seller. Under those circumstances, the
interests of justice are best served by reducing the judgment [to
straight possession]."]; P v. Long (1974) 42 CA3
751, 758 ["Defendant is on extremely shaky ground with respect to
his contention that the informant's identity is relevant to the
included offense of possession."]; P v.
Borunda (1976) 58 CA3 368, 375 ["When the informant would
be a material witness who might give testimony exonerating the
defendant of sale or possession for sale, but there is no evidence
he could give testimony exonerating the defendant of simple
possession, the trial court should reduce the charges to simple
possession rather than to dismiss them in their entirety."].

[71] CAL: P v.
Callen (1987) 194 CA3 558, 563.