State v. Burnett: Disclosing the Name of a CI in NJ

A key issue that frequently arises in New Jersey criminal cases is whether the identity of a confidential informant (CI) must be disclosed to the defense. This impacts the defendant's ability to investigate the case and challenge the credibility of witnesses against them. A landmark case on this issue is State v. Burnett, 42 N.J. 377 (1964). The Burnett case established important limits on the government's ability to withhold a CI's identity.

Balancing Test for CI Disclosure in Burnett

The Burnett court ruled that judges must balance two competing interests when deciding whether to order disclosure of a CI's identity:

1. The defendant's right to prepare a defense and receive a fair trial
2. The government's need to protect the CI's identity and safety

If the CI's identity is helpful to the defense, this outweighs the interest in secrecy and disclosure should be ordered. But if the informant is merely a "tipster" whose role was minor, anonymity may be protected.

Applying the Burnett Test

To apply the Burnett test, courts evaluate:

• What need is shown for disclosing the CI's identity
• The role played by the CI in the criminal investigation
• Any other available evidence bearing on guilt or innocence

The more important the CI's testimony and credibility, the more likely disclosure is required. But if other evidence against the defendant is strong, courts may uphold non-disclosure.

When Disclosure of a CI's Identity is Required

Situations where disclosure is often required under the Burnett test include:

• The CI was an eyewitness or participant in the alleged crime
• The CI helped arrange the criminal transaction
• Credibility of the CI is essential to the case
• The CI is the sole witness against the defendant

In these cases, the CI's identity and background are crucial to the defense, outweighing the interest in secrecy.

When CI Identity May Stay Confidential

Scenarios where courts may uphold non-disclosure of a CI include:

• The CI merely provided background tips but was not a witness
• Police corroborated the CI's information through independent investigation
• Other credible witnesses are available to establish guilt
• Revealing the CI's identity could jeopardize safety

Here, the defense need for disclosure does not override the government's interest in protecting the CI.

Procedures for Disclosure of CI Identity

If a judge orders disclosure, procedures include:

• In camera review of CI background material to determine extent of disclosure needed
• Redacting confidential information not relevant to identity (address, employment, etc.)
• Issuing protective orders to limit use of CI identity information

These steps balance the defense right to information against the interest in safeguarding the CI.

Defense Strategies Using CI Identity

Once the CI's identity is disclosed, the defense may:

• Interview the CI to assess credibility and bias
• Investigate background to uncover impeachment evidence
• Call CI as a defense witness at trial
• Argue weaknesses in investigation that relied on CI

This allows for a vigorous defense challenging the CI's version of events.

Prosecution Strategies to Avoid Disclosure

To prevent disclosure, prosecutors may:

• Avoid using CI testimony at trial
• Establish probable cause without relying solely on CI
• Corroborate CI statements through other evidence
• Argue disclosure would jeopardize CI safety

By minimizing reliance on the CI, the need for disclosure decreases.

Appealing CI Disclosure Rulings

Both prosecutors and defense counsel can file interlocutory appeals challenging a trial judge's CI disclosure decision. This allows appellate courts to establish standards guiding this sensitive issue. But the trial judge has broad discretion, so reversals are rare absent clear misapplication of the Burnett balancing test.

CI Disclosure in Federal Court

While Burnett is binding in New Jersey, federal courts apply a similar balancing test for CI disclosure under Roviaro v. United States, 353 U.S. 53 (1957). The same principles generally apply.

Consult an Attorney if CI Disclosure is Denied

The Burnett case gives New Jersey defendants a strong basis to demand disclosure if a CI's identity and background are material to the defense. If disclosure is wrongly denied, an experienced criminal defense lawyer can pursue all appeals to obtain this crucial information.