Rule 11-510. Identity of informer.

A. Definition. An “informer” is a person who has provided information concerning a possible violation of the law to (1) a law enforcement officer; (2) a legislative committee member or staffer; or (3) an individual who has assisted with an investigation into a violation of the law. B. Scope of the privilege. The United States, a state, or a subdivision thereof has a privilege to refuse to disclose the identity of an informer. C. Who may claim the privilege. The privilege may be claimed by an appropriate representative of the United States, a state, or a subdivision thereof. D. Exceptions: (1) Criminal cases. In criminal cases, the privilege shall not be allowed if the United States, a state, or a subdivision thereof objects. (2) Voluntary disclosure. The privilege no longer exists if the informer or a holder of the privilege discloses the informer’s identity to anyone whose interests are adverse to the informer or to a holder of the privilege. Disclosure occurs when (a) the informer’s actual identity is disclosed; or (b) information that is substantially certain to reveal the informer’s identity is disclosed. (3) Compelled testimony. (a) Motion by a party. A party may move the court for an in camera determination of whether the disclosure of an informer’s identity or ability to testify should be ordered if the United States, a state, or a subdivision thereof invokes the informer privilege, and the evidence suggests that the informer can provide testimony that is (i) relevant and helpful to a criminal defendant; (ii) necessary for a fair determination of the guilt or innocence of a criminal defendant; or (iii) material to the merits in a civil case in which the United States, a state, or a subdivision thereof is a party. When such a motion is made, the court will provide the United States, the state, or the subdivision thereof an opportunity to present evidence for an in camera review addressing whether the informant can, in fact, supply such testimony. (b) In camera proof. In an ordinary case, the United States, a state, or a subdivision thereof may defend such a motion with affidavits. If the court determines that the issue cannot be resolved through affidavits, the court may order testimony from the informer or other relevant persons. (c) Standard governing disclosure. If the court finds a reasonable probability that the informer can provide testimony favorable to the movant, the court shall require the disclosure of the informer’s identity or testimony. If the United States, a state, or a subdivision thereof declines to make the disclosure, the court may, upon a motion of the movant or sua sponte (i) dismiss the charges relating to the informer’s testimony in a criminal case; or (ii) order any remedy that justice requires. (d) Record. If any counsel is permitted to be present at any stage of the proceedings conducted before the court, all counsel shall be given the opportunity to appear. Any evidence tendered to the court for an in camera review that is not ordered to be disclosed shall be placed under seal and preserved for appellate review. The evidentiary record shall not be revealed without an order of the court. (4) Lawfulness of obtaining evidence. (a) Motion by a party or court. When any employee of the United States, a state, or a subdivision thereof relies upon information from an informer to establish the legal means to obtain evidence and the court finds that the informer’s information was not reliable or credible, the court may order the disclosure of the informer’s identity. Such an order may be limited to a disclosure in camera, but the court may order any disclosure that justice requires. (b) Record. If any counsel concerned with the legality of evidence obtained through an informer is permitted to be present before the court, all counsel shall be given the opportunity to appear. If the informer’s identity is disclosed in camera and not ordered to be disclosed publicly, the record of that disclosure shall be placed under seal and preserved for appellate review. The evidentiary record shall not be revealed without an order from a court with jurisdiction over the case.