Rule 509. Identity of Informant

(a) Rule of privilege and definitions.

(1) Rule of privilege. The United States, a state or subdivision thereof, or any foreign country has a privilege to refuse to disclose the identity of an informant.

(2) Definitions. As used in this rule, an "informant" is a person who has furnished information relating to or assisting in an investigation of a possible violation of law to:

(A) A law enforcement officer conducting an investigation; or

(B) A member of a legislative committee or its staff conducting an investigation.

(b) Who may claim the privilege. An authorized representative of the public entity that received the information may claim the privilege.

(c) Exceptions. The privilege of the identity of an informant does not apply if:

(1) The informant's identity or his or her interest in the investigation has already been revealed to those who might resent the communication; or

(2) The informant appears as a witness for the state.

(d) Testimony on relevant issue. If it appears that an informant may be able to give relevant testimony in a civil or criminal case to which a public entity is a party, the public entity may invoke the privilege. If the public entity invokes the privilege:

(1) The court may give the public entity an opportunity to show, in camera and on the record, whether the informant can, in fact, supply the relevant testimony. The showing may be in the form of affidavits or, if the court finds that the matter cannot be satisfactorily resolved with affidavits, through testimony.

(2) If the court finds that there is a reasonable probability that the informer can give relevant testimony, the court may, either on its own or on motion of a party, enter an order requiring the public entity to disclose the identity of the informant within a specific time and providing relief to other parties in the event the public entity elects not to disclose the identity of the informant within the time specified.

(A) In a criminal case, the relief may include one or more of the following:

(i) Granting the defendant additional time or a continuance;

(ii) Relieving the defendant from making disclosures otherwise required;

(iii) Prohibiting the prosecution from introducing certain evidence; and

(iv) Dismissing the charges.

(B) In a civil case, the court may provide any relief required in the interests of justice.

(C) When ordering relief, the court shall ensure that:

(i) Evidence submitted to the court must be sealed and preserved for appeal;

(ii) A docket entry specifying the form, but not the content, of the evidence must be made; and

(iii) All counsel and parties may be present at every stage of the proceedings under this rule, except that, at a showing in camera, only counsel for the public entity may be present.

Committee Notes

Maine Restyling Note [November 2014] Maine Rule 509 has been restyled in accordance with the federal restyling conventions, and, as part of this process, the Committee has proposed some minor, nonsubstantive changes to clarify the Rule.

Advisers' Note to former M.R. Evid. 509 (February 2, 1976) The privilege of the state to refuse to disclose the identity of an informer is well settled in Maine as elsewhere. State v. Fortin, 106 Me. 382, 76 A. 896 (1910). It reflects a recognition that effective use of informers in law enforcement compels protection of their anonymity. It is only the identity of the informer that need not be revealed. The content of what he says is not privileged except to the extent necessary to conceal his identity. The reference to "any foreign country" is designed especially to preserve the privilege of Canadian police officials not to disclose the identity of an informer. The exceptions to the privilege set forth in subdivision (c) seem entirely reasonable although there is no Maine case law dealing with them. When the informer's identity has been disclosed to "those who would have cause to resent the communication", a phrase from Roviaro v. United States, 353 U.S. 53, 60, 77 S.Ct. 623, 627 (1957), there is no longer a reason for the privilege. The same is true if the informer appears as a witness. Subsection (c)(2) is built chiefly from the teachings of Roviaro v. United States, supra, the leading case. The informer privilege cannot be used to suppress the identity of a witness when the right of the accused to prepare his defense outweighs the public interest in protecting the flow of information. The rule lays out a procedure for determining whether the informer can supply relevant testimony, including proceedings in camera at the state's request, with a provision for sealing and preserving evidence so as to make it available in event of an appeal. An appeal in which the appellant cannot know what the sealed evidence is poses obvious practical difficulties, but there is at least some possibility of effective review. The rule further prescribes what happens when the state elects not to disclose the informer's identity. The usual result in a criminal case would be a dismissal of the charges, but there are other options open to the court.

Advisory Committee Note (February 1, 1983) The procedure set forth in Rule 509(c)(2) applies when the informer may be able to give testimony relevant to any issue in a criminal case, including suppression of evidence. See State v. Chase, 439 A.2d 526 (Me. 1982).