Najam, J.
The State appeals the trial court’s order that the State produce a confidential
informant (“CI”) for an interview with Justin Jones’ counsel. The State raises
one issue for our review, namely, whether the court abused its discretion when it ordered that Jones’ counsel be permitted to conduct a face-to-face interview with the CI.
We affirm
…
The State contends that the trial court erred when it granted Jones’ motion to compel. Our Supreme Court has recently stated that trial courts “have broad discretion on issues of discovery.” Beville v. State, 71 N.E.3d 13, 18 (Ind. 2017). “Accordingly, discovery rulings—such as rulings on motions to compel—are reviewed for an abuse of that discretion.” Id. Here, the State specifically contends that the court abused its discretion when it granted Jones’ motion to compel because the face-to-face interview between the CI and Jones’ counsel would lead to the identification of the CI. And the State asserts that the informer’s privilege is applicable in this case to protect the CI’s identity.
Under the informer’s privilege, the State may withhold the disclosure of evidence that reveals an informant’s identity for at least two important policy reasons: preventing retaliation against informants and ensuring that individuals come forward with information to help law enforcement. Id. at 19. “The informer’s privilege, however, is not absolute: if the accused seeks disclosure, the burden is on him to ‘demonstrate that disclosure is relevant and helpful to his defense or necessary for a fair trial.’” Id. (quoting Schlomer v. State, 580 N.E.2d 950, 954 (Ind. 1991)). If the defendant meets his burden, the burden then shifts to the State to present evidence showing that disclosure is not necessary to the defendant’s case or that disclosure would threaten its ability to recruit or use CIs in the future. Id. At that point, the trial court must evaluate the evidence and determine whether disclosure is appropriate. See id.
However, the State bears the initial responsibility to prove that the privilege applies. See id. at 21. Thus, before we determine whether Jones met his burden as the defendant seeking privileged information, we must first determine whether the State properly asserted that privilege. In order for the State to invoke the privilege, the State “must show that the CI’s identity would be revealed if the criminal defendant’s discovery request is granted.” Id.
On appeal, the State asserts that it met its initial burden to assert the privilege because the in-person interview will reveal to Jones’ counsel “sufficient means to deduce” the CI’s identity.
…
However, we agree with Jones that the “State never goes beyond an assumption that defense counsel seeing the informant will reveal the informant’s identity.” Appellee’s Br. at 8. Indeed, during a hearing on the motion to compel, the State conceded that it did not know whether Jones’ counsel would recognize the CI. And the State acknowledges that, while the in-person interview “might” reveal certain of the CI’s identifiers to Jones’ counsel, it “may not.” Appellant’s Br. at 17. But it is not enough to show that the CI’s identity might be revealed. Rather, it was the State’s burden to prove that the CI’s identity would be revealed as a result of the face-to-face interview. See Beville, 71 N.E.3d at 21 (emphasis added).
If we were to adopt the State’s position, we would, in essence, preclude the disclosure of any communications in which someone could potentially identify a CI. We decline to adopt that position. Here, the court fashioned a solution that balanced Jones’ right to information that would allow him to prepare his defense with the State’s desire to keep the CI’s identity hidden when it allowed Jones’ counsel to interview the CI without asking any questions that would reveal the CI’s identity. Because the State did not meet its burden to demonstrate that the CI’s identity would be revealed, it has failed to meet it initial burden to establish that the informer’s privilege applies in this case.
Still, even if we were to agree with the State that it had properly invoked the privilege, Jones has met his burden to demonstrate that the CI had information that is relevant and helpful to his defense or necessary for a fair trial. See Beville, 78 N.E.3d at 19. In his brief, Jones raises numerous questions that suggest the information from the CI would be helpful for him to understand how the officers investigating the robbery at Thompson’s house linked him to that offense. Accordingly, we conclude that the trial court did not abuse its discretion when it granted Jones’ motion to compel, and we affirm the trial court.
Affirmed.
Bradford, C.J., and Mathias, J., concur.