informant privilege in Massachusetts

2025"The first stage involves preliminary determinations as to (a) whether the Commonwealth has properly asserted an informant privilege, and (b) whether the defendant has adequately challenged the assertion of the privilege as an impermissible interference with his or her right to present a defense." Bonnett, 472 Mass. at 846 .

2023On April 16, 2019, 3 The defendant conceded at oral argument that, if this court determined that the Commonwealth properly invoked the informant privilege and that the standard set forth in Commonwealth v. Bonnett, 472 Mass. 827, 846-848 (2015), S.C., 482 Mass. 838 (2019), applied to the defendant's discovery motion, the defendant had failed to meet her burden under that standard.

2023See Commonwealth v. Amral, 407 Mass. 511, 520 (1990), citing Franks v. Delaware, 438 U.S. 154, 155-156 (1978) (establishing defendant's entitlement to in camera hearing where defendant asserts facts that cast doubt on veracity of material representations in warrant affidavit concerning reliability of confidential informant). 8 The defendant specifically did not request the identity of the informant, positing further that "the requested information should in no way reveal the identity of the informant." The Commonwealth filed an opposition, arguing that the requested information was protected b

2023Should a defendant wish to overcome the informant privilege, the defendant bears the burden of challenging the Commonwealth's assertion. [Commonwealth v. Dias, 451 Mass. 463, 464 (2008)]. 'We have characterized a defendant's obligation at this juncture as "relatively undemanding," but it does require the defendant to articulate a basis sufficient for the judge to "assess the materiality and relevancy of the disclosure to the defense, if that relevancy is not apparent from the nature of the case."' [Commonwealth v. D.M., 480 Mass. 1004, 1006 (2018)], quoting Bonnett, supra at 847.

2017The informant privilege, long recognized in our Commonwealth, "serves a substantial, worthwhile purpose in assisting the police in obtaining evidence of criminal activity." Commonwealth v. Madigan , 449 Mass. 702 , 706 (2007), quoting from Commonwealth v. Douzanis , 384 Mass. 434 , 441 (1981).

2009The informant privilege serves a “substantial, worthwhile purpose in assisting the police in obtaining evidence of criminal activity,” Commonwealth v. Madigan, supra at 706 , quoting Commonwealth v. Douzanis, 384 Mass. 434, 441 (1981), and has long been recognized in the Commonwealth.

2023Although "[t]he government's privilege not 7 to disclose the identity of an informant has long been recognized in this Commonwealth . . . [t]he scope of the informant privilege is limited by its underlying purpose: 'where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged.'" Commonwealth v. Whitfield, 492 Mass. 61 , 68 (2023), quoting Roviaro v. United States, 353 U.S. 53, 60 (1957).

2023The scope of the informant privilege is limited by its underlying purpose: "where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged." Roviaro, 353 U.S. at 60 .

2024See Commonwealth v. Amral, 407 Mass. 511 , 526 n.11 (1990) (privilege properly asserted where disclosure of requested information "would be tantamount to revealing the informant's identity"); Douzanis, 384 Mass. at 436 n.4 (applying privilege where requested information "would in effect identify the informant" and permitting judge on remand to consider "whether full or partial disclosure of the demanded information would in fact reveal the informant's identity").

2023See Commonwealth v. Amral, 407 Mass. 511, 520 (1990), citing Franks v. Delaware, 438 U.S. 154, 155-156 (1978) (establishing defendant's entitlement to in camera hearing where defendant asserts facts that cast doubt on veracity of material representations in warrant affidavit concerning reliability of confidential informant). 8 The defendant specifically did not request the identity of the informant, positing further that "the requested information should in no way reveal the identity of the informant." The Commonwealth filed an opposition, arguing that the requested information was protected b

2025See Commonwealth v. Bonnett, 472 Mass. 827, 846 (2015), S.C., 482 Mass. 838 (2019).

2023On April 16, 2019, 3 The defendant conceded at oral argument that, if this court determined that the Commonwealth properly invoked the informant privilege and that the standard set forth in Commonwealth v. Bonnett, 472 Mass. 827, 846-848 (2015), S.C., 482 Mass. 838 (2019), applied to the defendant's discovery motion, the defendant had failed to meet her burden under that standard.

2023While a defendant's burden at this stage is "relatively undemanding," see D.M., 480 Mass. at 1006 , quoting Bonnett, supra at 847, "[c]ases that have required disclosure have done so on a 'standard of materiality or 12As noted supra, the motion judge's contrary finding, based solely on the documentary evidence, is due no deference.

2023Should a defendant wish to overcome the informant privilege, the defendant bears the burden of challenging the Commonwealth's assertion. [Commonwealth v. Dias, 451 Mass. 463, 464 (2008)]. 'We have characterized a defendant's obligation at this juncture as "relatively undemanding," but it does require the defendant to articulate a basis sufficient for the judge to "assess the materiality and relevancy of the disclosure to the defense, if that relevancy is not apparent from the nature of the case."' [Commonwealth v. D.M., 480 Mass. 1004, 1006 (2018)], quoting Bonnett, supra at 847.

2017The informant privilege, long recognized in our Commonwealth, "serves a substantial, worthwhile purpose in assisting the police in obtaining evidence of criminal activity." Commonwealth v. Madigan , 449 Mass. 702 , 706 (2007), quoting from Commonwealth v. Douzanis , 384 Mass. 434 , 441 (1981).

2009The informant privilege serves a “substantial, worthwhile purpose in assisting the police in obtaining evidence of criminal activity,” Commonwealth v. Madigan, supra at 706 , quoting Commonwealth v. Douzanis, 384 Mass. 434, 441 (1981), and has long been recognized in the Commonwealth.

2025In response to the defendant's motion for disclosure of the CI information, the Commonwealth successfully invoked the "informant privilege." When asserted properly, the informant privilege excuses the Commonwealth from providing discovery regarding a confidential informant's identity, including "details that would in effect identify the informant." Commonwealth v. Whitfield, 492 Mass. 61 , 68 (2023), quoting Commonwealth v. John, 36 Mass. App. Ct. 702, 707 (1994).

2023United States v. Tzannos, 460 F.3d 128, 140 (1st Cir. 2006).

2015A defendant making such a claim is required to present “some offering so that the trial judge may assess the materiality and relevancy of the disclosure to the defense, if that relevancy is not apparent from the nature of the case and the defense offered thereto.” Commonwealth v. Kelsey, 464 Mass. 315, 323 (2013) (Kelsey), quoting Commonwealth v. Swenson, 368 Mass. 268, 276 (1975). 22 The relatively undemanding nature of this standard is the result of the fact that, again, the details concerning privileged information sought by the defendant ordinarily are not in his or her possession.

2015Second, if the Commonwealth properly has asserted an informant privilege, the defendant may request that the privilege be set aside on the grounds that it “interferes with a fair defence.” Commonwealth v. Johnson, 365 Mass. 534, 544 (1974), S.C., 372 Mass. 185 (1977) (Johnson).

2015Nor was any compromise considered that might allow disclosure while minimizing danger to the [informant].” Johnson, 365 Mass. at 546 .

2015A determination that the undisclosed information was held only by the Federal government may defeat this type of claim, because “[t]he prosecutor cannot be said to suppress that which is not in his [or her] possession or subject to his [or her] control.” Commonwealth v. Donahue, 396 Mass. 590, 596 (1986). 21 There is apparently no disagreement that, absent the assertion of the informant privilege, the identity of the person who provided the information detailed in the report produced to the defendant would be discoverable under Mass. R.

2015A defendant making such a claim is required to present “some offering so that the trial judge may assess the materiality and relevancy of the disclosure to the defense, if that relevancy is not apparent from the nature of the case and the defense offered thereto.” Commonwealth v. Kelsey, 464 Mass. 315, 323 (2013) (Kelsey), quoting Commonwealth v. Swenson, 368 Mass. 268, 276 (1975). 22 The relatively undemanding nature of this standard is the result of the fact that, again, the details concerning privileged information sought by the defendant ordinarily are not in his or her possession.

2009See Commonwealth v. Dias, 451 Mass. 463, 468 (2008); Worthington v. Scribner, 109 Mass. 487, 488 (1872).