Rush, CJ.
The State told Marvin Beville it had a video recording of a controlled drug buy between him and a confidential informant. But while the State offered Beville’s public defender the opportunity to review the recording in the prosecutor’s office, it would not allow Beville himself to see the video. Beville accordingly requested a copy of the recording, to no avail. His counsel then filed a motion to compel and argued that Beville’s personal review of the video was fundamental to preparing a defense. The State responded that the informer’s privilege entitled it to withhold disclosing the recording. The trial court agreed with the State, and Beville took this interlocutory appeal.
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The State accused Marvin Beville of selling marijuana to a confidential informant (“CI”) and charged Beville with dealing in marijuana and maintaining a common nuisance. At some point, the State informed Beville it had a video recording of a controlled buy between him and the CI.
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I. Although Both the Dillard Test and the Informer’s Privilege Are Well-Established in Indiana, This Court Has Not Resolved How These Two Frameworks Work Together.
Shortly after the Indiana Trial Rules took effect, this Court established the Dillard test. This test set a three-part standard for determining whether a criminal defendant’s discovery request should be granted: (1) if there is a sufficient designation of the items sought to be discovered (particularity), and (2) if the items sought to be discovered are material to the defense (relevance), (3) then the trial court must grant the request unless the State makes a sufficient showing of its “paramount interest” in non-disclosure. See Dillard v. State, 257 Ind. 282, 291–92, 274 N.E.2d 387, 392 (1971) …
Similarly well-established is the informer’s privilege. See, e.g., Schlomer v. State, 580 N.E.2d 950, 954 (Ind. 1991). Under this privilege, Indiana generally withholds the disclosure of evidence that reveals an informant’s identity for at least two important policy reasons—preventing retaliation against informants and ensuring individuals come forward with information to help law enforcement. …
Although both the Dillard test and the informer’s privilege are firmly rooted in Indiana law, this Court has not squarely considered how they work in tandem. …
Beville argues that the informer’s privilege does not even apply to this discovery dispute because only the State’s bare assertion suggests that the CI’s identity would be revealed through the video. …
The State maintains that the informer’s privilege does apply and that, once raised, the burden shifted to Beville to demonstrate that an exception to the privilege requires disclosure of the video. …
… With these conflicting interests in mind, we ultimately agree with Beville that the trial court should have granted his motion to compel—but we employ a slightly different legal analysis to reach that result.
II. The State Bears the Initial Burden to Demonstrate the Applicability of the Informer’s Privilege. If the State Makes That Showing, the Dillard Test Is Inapplicable and the Defendant Must Demonstrate that an Exception Justifies Disclosure.
Contrary to Beville’s proposed approach, we conclude that when the State properly asserts the informer’s privilege, the Dillard test is inapplicable. …
However, to successfully assert the informer’s privilege in the first instance—and thereby shift the burden to the defendant—the State bears the burden of proving the privilege applies. … the State may not circumvent a Dillard test analysis by simply making a bare assertion that the informer’s privilege applies. Rather, the State—as the party seeking to avoid disclosure— “has the burden of establishing the essential elements of the privilege being invoked.” …
Imposing this threshold burden on the State is also mandated by the Indiana Trial Rules. Specifically, Trial Rule 26(B)(5) …
Applied to the informer’s privilege, this means the State must show that the CI’s identity would be revealed if the criminal defendant’s discovery request is granted. …
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… If the trial court finds that the informer’s privilege does, in fact, apply, the burden shifts to the defendant to demonstrate an exception to that privilege. … But if the trial court determines that the video’s content is non-privileged, then the general Dillard test governs the discovery dispute. … Given that the State failed to meet its threshold burden of establishing the essential elements of the informer’s privilege, we conclude that the trial court abused its discretion in denying Beville’s motion to compel.
But we hasten to point out that even if the State had established that the video would have revealed the CI’s identity, Beville would still have been entitled to a copy of the recording. …
At the motion to compel hearing, defense counsel argued that disclosure to Beville was necessary because the State planned to admit the video recording at trial in lieu of calling the CI to testify and that reviewing the video with his client was “fundamental” to preparing the defense. We agree.
… Here, it is essential that Beville review the video with his counsel because Beville is in the best position to point out whether he is actually the target depicted in the video and to explain the relation he has to the location of the alleged buy. …
After Beville demonstrated that an exception to the informer’s privilege applies, the burden was on the State to show that disclosure was not necessary to Beville’s case or that disclosure would threaten its ability to use or recruit CIs in the future. … The State, however, presented no evidence in this regard. Rather, it remains unanswered why withholding the video recording from Beville is critical at this stage, given that the State plans to show it to everyone in the courtroom, including Beville, during trial.
… Accordingly, we reverse the trial court’s denial of Beville’s motion to compel.
Rucker, David, Massa, and Slaughter, JJ., concur.