Rush, CJ.
The confidential informer’s privilege allows the government to withhold the identity of those who provide information about crimes, furthering important law-and-order interests. But these interests must be balanced with a defendant’s right to prepare a defense and have a fair trial. So, the general rule of nondisclosure can be overcome if a defendant demonstrates that an exception to the privilege should apply. And when a defendant makes an argument for disclosure, a trial court must balance the countervailing concerns at play.
Yet, courts need not engage in such a balancing inquiry unless the State makes a threshold showing that the confidential informer’s privilege even applies—by establishing that fulfilling the defendant’s discovery request would reveal the informant’s identity. Beville v. State, 71 N.E.3d 13, 21 (Ind. 2017).
Today, we hold that, as a matter of law, an informant’s identity is inherently revealed through their physical appearance at a face-to-face interview. Thus, when a defendant requests such an interview—as Justin Jones did here—the State has met its threshold burden to show the informer’s privilege applies. And because the trial court did not apply the established balancing test before ordering disclosure, we reverse and remand.
…
The confidential informer’s privilege allows the State to withhold the identity of a person who provides information to the government. Lewandowski v. State, 271 Ind. 4, 7, 389 N.E.2d 706, 708 (1979); see also Roviaro v. United States, 353 U.S. 53, 59 (1957). The privilege promotes law and order, but it also implicates another significant concern: a criminal defendant’s ability to obtain useful information to prepare a defense or ensure a fair trial. Lewandowski, 271 Ind. at 7, 389 N.E.2d at 708. And, so, a defendant may argue that disclosure is nonetheless necessary, requiring the trial court to balance countervailing interests and decide whether an exception to the privilege applies. Id. at 7–8, 389 N.E.2d at 708–09.
But such a determination isn’t necessary unless the State has made the threshold showing that it can invoke the confidential informer’s privilege. Beville, 71 N.E.3d at 21. Specifically, the State must demonstrate “that the CI’s identity would be revealed” if it were to comply with the defendant’s discovery request. Id.
Here, the State argues that disclosing the CI’s physical appearance through a face-to-face interview necessarily reveals the CI’s identity, triggering application of the privilege. Jones asserts that a face-to-face interview doesn’t inevitably disclose a person’s identity—rather, that occurs only when the interviewer recognizes the CI or the CI somehow reveals “other identifying information.”
We agree with the State. As a matter of law, the confidential informer’s privilege protects a CI’s physical appearance. Accordingly, because Jones requested a face-to-face interview with the CI, the State satisfied its threshold burden to show the privilege applies. And so the trial court must employ the established balancing test to determine whether an exception to the confidential informer’s privilege is warranted.
…
To show the confidential informer’s privilege applies, the State must establish that, if it complies with the defendant’s discovery request, the informer’s identity would be revealed. See Beville, 71 N.E.3d at 21. The question, then, is whether the State satisfied its burden after Jones requested a face-to-face interview with the CI. The State did.
In Beville v. State, this Court found that when a defendant’s discovery request “would obviously reveal” an informant’s identity, then “the State has necessarily made the threshold showing that the informer’s privilege is being properly invoked.” Id. There, the defendant requested a copy of a recording of an alleged controlled buy between him and a CI. Id. at 17. Accordingly, the question was whether the State established that the CI’s identity would have been revealed if the defendant watched the recording. Id. at 22.
The Court determined that the State failed to meet this threshold showing. Id. at 24. This was because “only the State’s bare assertion suggest[ed] that the CI’s identity would be revealed,” id. at 19; and it was unclear whether the CI’s physical appearance would have been visible in the recording. Id. at 22. Indeed, it was unknown whether the camera had been pointed at the target of the investigation or at the CI. Id. If the video had been pointed at the target—as is the case in most controlled-buy videos—then the CI’s identity would not have been revealed. Id. On the other hand, if the camera somehow captured the CI, and the CI was visible, the CI’s identity would have been disclosed. Id. Given this uncertainty, the State was not entitled to withhold disclosure of the video. Id. at 24.
The situation before us, though, is markedly different from that in Beville. Unlike the video of the controlled buy, Jones’s requested face-to-face interview with the CI “would obviously reveal” the CI’s identity, as the interview would disclose physical appearance, which is tantamount to an informant’s identity. Id. at 21. Indeed, “few other types of information . . . would reveal the CI’s identity more readily than his or her physical appearance.” Goodloe v. City of New York, 136 F. Supp. 3d 283, 297 n.7 (E.D.N.Y. 2015). Thus, just as the informer’s privilege protects an informant’s name and address, Schlomer v. State, 580 N.E.2d 950, 954 (Ind. 1991), the privilege must also protect a CI’s physical appearance. So, if the State shows the defendant is requesting a face-to-face interaction, as here, then the State has necessarily met the threshold showing to invoke the confidential informer’s privilege. See Beville, 71 N.E.3d at 19
Jones argues that such a showing is insufficient to trigger the privilege and rather, to satisfy the threshold requirement, the State must establish either that (1) the interviewer would “recognize” the CI, or (2) a face-to face interaction would lead to “other identifying and locating information.”
There are three reasons why we reject Jones’s first contention regarding a recognition standard. First, proving recognition would be an impossible burden for the State to meet. The State has no advance insight about who an interviewer may recognize. And any actions taken to learn whether the interviewer would recognize the CI would likely reveal the person’s identity anyway.
Second, an interviewer’s recognition of a CI would depend on that CI’s personal characteristics. And it would be arbitrary to apply this privilege to people with distinct physical characteristics, making them more easily recognizable, but not to others who have less identifiable features. Further, such a standard could also raise questions of bias, as trial judges—the ones deciding whether a person has recognizable features— would use their own experiences to determine what was and was not “recognizable.”
…
Finally, such a standard would vary based on geographical area. For example, CIs in a large city might be relatively anonymous; and it might be unlikely that an interviewer would recognize them. But in rural and less populous areas, where “everybody knows everybody,” recognition would be more likely. To be sure, even within urban areas, tight-knit neighborhoods and communities “where everybody knows your name” still exist.
…
In short, because a CI’s physical appearance during a face-to-face interview reveals the informant’s identity, any request for such a meeting triggers the informer’s privilege. But this does not mean a CI’s identity can’t be disclosed. Rather, the burden simply shifts to the defendant to show why disclosure is warranted; and then the trial court must engage in a balancing inquiry.
…
Once the State has met the threshold requirement to show the confidential informer’s privilege applies, the burden falls on the defendant to demonstrate disclosure is relevant and helpful to the defense or that it’s necessary for a fair trial.
…
The State then gets the opportunity to dispute whether disclosure is necessary to the defense or show that disclosure would threaten its ability to recruit or use CIs in the future.
…
Then, with both sides’ evidence in hand, the trial court balances the respective interests to determine whether the general rule of nondisclosure has been overcome.
…
Here, however, nothing in the record suggests the trial court engaged in the appropriate balancing inquiry when ordering a face-to-face interview. Rather, the trial judge explained he had known defense counsel for a long time and trusted counsel was “looking for something real.” The judge added that “I’d be curious, too,” and so decided to “let him talk to the guy, let him find out what he can find out.” But, as explained above, this is not sufficient. We thus remand to the trial court to apply the established balancing test outlined above.
Today, as a matter of law, we hold that disclosing a CI’s physical appearance through a face-to-face interview reveals the CI’s identity. Thus, by showing Jones requested such an interview, the State has met its threshold burden to show the confidential informer’s privilege applies. And because the trial court did not engage in the necessary balancing inquiry to determine whether an exception to nondisclosure was warranted, we reverse the court’s order and remand.
David, Massa, Slaughter, and Goff, JJ., concur.