(a)Except where disclosure is forbidden by an act of the Congress of the United States, if a claim of privilege under this article by the state or a public entity in this state is sustained in a criminal proceeding, the presiding officer shall make such order or finding of fact adverse to the public entity bringing the proceeding as is required by law upon any issue in the proceeding to which the privileged information is material.
(b)Notwithstanding subdivision (a), where a search is made pursuant to a warrant valid on its face, the public entity bringing a criminal proceeding is not required to reveal to the defendant official information or the identity of an informer in order to establish the legality of the search or the admissibility of any evidence obtained as a result of it.
(c)Notwithstanding subdivision (a), in any preliminary hearing, criminal trial, or other criminal proceeding, any otherwise admissible evidence of information communicated to a peace officer by a confidential informant, who is not a material witness to the guilt or innocence of the accused of the offense charged, is admissible on the issue of reasonable cause to make an arrest or search without requiring that the name or identity of the informant be disclosed if the judge or magistrate is satisfied, based upon evidence produced in open court, out of the presence of the jury, that such information was received from a reliable informant and in his discretion does not require such disclosure.
(d)When, in any such criminal proceeding, a party demands disclosure of the identity of the informant on the ground the informant is a material witness on the issue of guilt, the court shall conduct a hearing at which all parties may present evidence on the issue of disclosure. Such hearing shall be conducted outside the presence of the jury, if any. During the hearing, if the privilege provided for in Section 1041 is claimed by a person authorized to do so or if a person who is authorized to claim such privilege refuses to answer any question on the ground that the answer would tend to disclose the identity of the informant, the prosecuting attorney may request that the court hold an in camera hearing. If such a request is made, the court shall hold such a hearing outside the presence of the defendant and his counsel. At the in camera hearing, the prosecution may offer evidence which would tend to disclose or which discloses the identity of the informant to aid the court in its determination whether there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial. 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, and only a court may have access to its contents. The court shall not order disclosure, nor strike the testimony of the witness who invokes the privilege, nor dismiss the criminal proceeding, if the party offering the witness refuses to disclose the identity of the informant, unless, based upon the evidence presented at the hearing held in the presence of the defendant and his counsel and the evidence presented at the in camera hearing, the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.
Notes of Decisions
Cited in
101
cases (
17 in the last 5 years), 1967–2026 · leading case:
People v. Kelly, 28 Cal. App. 5th 886 (Cal. Ct. App. 2018).
People v. Kelly, 28 Cal. App. 5th 886 (Cal. Ct. App. 2018).
· cites it 2× “( Evid. Code, § 1042, subd. (d) ; see People v.”
People v. Luttenberger, 784 P.2d 633 (Cal. 1990).
· cites it 4× “, Evid. Code, §§ 1042, subd. (d) [requiring in camera hearing, at prosecutor's request, to determine whether confidential informant's identity should be revealed on ground informant is material witness on guilt], 1045, subd.”
People v. Memro, 700 P.2d 446 (Cal. 1985).
· cites it 2× “[33] Evidence Code section 1042, subdivision (a) provides in part: "[I]f a claim of privilege under this article by the state or a public entity in this state is sustained in a criminal proceeding, the presiding officer shall make such order or finding of fact adverse to the…”
People v. Acevedo, 209 Cal. App. 4th 1040 (Cal. Ct. App. 2012).
· cites it 5× “(Evid. Code, § 1042, subd. (d).) Appellants argued in reply that the Hobbs procedures apply only to search warrant affidavits, not wiretap authorization affidavits, and that the statutory privileges cannot overcome the defendant’s right to mount a meaningful challenge to the…”
People v. Collins, 722 P.2d 173 (Cal. 1986).
· cites it 2× “Yet their position is no different from that of a defendant who seeks review, for example, of an order denying his motion to disclose the identity of a confidential informer following an in camera hearing from which the defendant and his counsel were excluded.”
Fed. Bureau of Investigation v. Superior Court, 507 F. Supp. 2d 1082 (N.D. Cal. 2007).
· cites it 3× “Procedural History Petitioners brought this Motion requesting that the court quash the state court subpoenas and vacate the state court order.”
People v. Kurland, 618 P.2d 213 (Cal. 1980).
· cites it 2× “It is well settled that defendant has no right to discover an informant's identity solely to attack a facially valid search warrant affidavit.”
People v. Coleman, 72 Cal. App. 3d 287 (Cal. Ct. App. 1977).
· cites it 4× “That subdivision provides for a hearing outside the presence of the jury when "a party demands disclosure of the identity of the *296 informant on the ground the informant is a material witness on the issue of guilt.”
In re Bacigalupo, 283 P.3d 613 (Cal. 2012).
· cites it 2× “) A hearing on that issue (Evid. Code, § 1042, subd. (d)) was then held on September 6, 1985, in the chambers of Santa Clara County Superior Court Judge Read Ambler.”
Schmid v. State, 615 P.2d 565 (Alaska 1980).
· cites it 2× “[9] See Cal. Evid. Code § 1042 (d) (West Supp. 1978), which provides: When, in any such criminal proceeding a party demands disclosure of the identity of the informant on the ground the informant is a material witness on the issue of guilt, the court shall conduct a hearing at…”
Davis v. Superior Court of Los Angeles Cnty., 186 Cal. App. 4th 1272 (Cal. Ct. App. 2010).
· cites it 2× “(Evid. Code, § 1042, subd. (d).) That section also provides in part: “During the hearing, if the privilege provided for in [Evidence Code] [s]ection 1041 is claimed by a person authorized to do so or if a person who is authorized to claim such privilege refuses to answer any…”
People v. Dimitrov, 33 Cal. App. 4th 18 (Cal. Ct. App. 1995).
· cites it 3× “” (Evid. Code, § 1042, subd. (d).) Appellant contends the trial court erred for two reasons.”
Cal. Evidence Code § 1042(d): 1 case
Fed. Bureau of Investigation v. Superior Court, 507 F. Supp. 2d 1082 (N.D. Cal. 2007).
“Procedural History Petitioners brought this Motion requesting that the court quash the state court subpoenas and vacate the state court order.”
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