Milligan adv. State: NJ Confidential Informant Disclosure
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Milligan v. State: Examining NJ Confidential Informant Disclosure Rules
In 1976, the New Jersey Supreme Court issued a landmark ruling in Milligan v. State that established legal standards governing confidential informant disclosure in criminal cases. The decision outlined factors courts must weigh when determining whether the identity of a confidential informant must be revealed to the defense.
Background of the Milligan Case
In Milligan, an undercover state trooper conducted a narcotics investigation in Camden County, New Jersey. A confidential informant introduced the trooper to Preston Milligan, the defendant. The informant was present at the initial meeting between Milligan and the trooper but did not participate in their discussion.
The informant then accompanied Milligan and the trooper to Milligan’s house. While a heroin sale took place between Milligan and the trooper in the living room, the informant was in the bathroom. The informant returned to the living room briefly after the sale was completed, then left with Milligan and the trooper.
Six months later, Milligan was arrested and charged with heroin possession and distribution. Before trial, Milligan’s attorney moved to compel the disclosure of the informant’s identity. The trial court denied the motion after a preliminary hearing.
The Supreme Court’s Ruling
On appeal, the New Jersey Supreme Court affirmed the denial of disclosure. The Court recognized the government’s common law privilege to withhold an informant’s identity, but noted the privilege is limited. Where fundamental fairness requires it, identity may be disclosed.
The Court outlined factors favoring disclosure:
- Inconsistencies in the trooper’s testimony
- Informant’s testimony could corroborate or deny trooper’s version
- Significant time between offense and arrest
- Defendant’s inability to recall events
However, the Court found Milligan did not make a strong showing of need for disclosure. The informant played a marginal role, and disclosure was not essential for a fair determination of the issues.
Key Principles from Milligan
The Milligan decision established guiding principles on informant disclosure that New Jersey courts still apply today:
- Balancing test: Courts must weigh the defendant’s need for disclosure against the government’s interest in confidentiality based on the specific facts of each case.
- Limited privilege: The informant’s privilege is limited and not absolute. Where fundamental fairness requires, identity can be disclosed.
- Active participant: Strong showing to disclose identity where informant actively participated in the crime charged.
- Entrapment defense: Disclosure warranted where entrapment defense asserted.
- Fair determination: Identity may be required where essential to a fair determination of the issues.
- Marginal role: Weak showing for disclosure where informant played marginal role like providing tips.
When Disclosure is Required
New Jersey courts have ordered disclosure in cases where the informant was an active participant in the crime, provided essential testimony, or when required by fundamental fairness.For example, disclosure was required where:
- Informant set up drug deal and was sole witness besides defendant
- Informant was only witness who could amplify trooper’s testimony
- Informant provided information later contradicted by video evidence
However, disclosure has been denied where the informant merely introduced parties or provided investigative tips.
Procedures for Disclosure Requests
Defense attorneys in New Jersey can request disclosure of an informant’s identity through pretrial discovery motions. The State can assert the informant’s privilege, triggering a hearing.
At the hearing, the defense must make a strong showing of need for disclosure under the Milligan factors. The court then weighs this need against the government’s interest in confidentiality.
If disclosure is ordered, prosecutors can request protective measures like redactions or limitations on use of the information.
Balancing Competing Interests
Milligan established a balancing test that weighs the defendant’s constitutional rights against the government’s interest in maintaining informants. This balancing recognizes the importance of informants in law enforcement investigations.
Complete abolition of the informant’s privilege would deter citizen cooperation with police. At the same time, partial disclosure tailored to the circumstances may be required for fair trials.
Defense attorneys continue to rely on Milligan when seeking disclosure in New Jersey courts. The decision reflects the complex balancing act between competing interests inherent in the criminal justice system.