A military judge can order the government to disclose the identity of a confidential informant, but only after weighing a recognized privilege against the accused’s need for a fair trial. The question typically arises during a motions hearing, where the defense moves to compel disclosure and the government invokes its right to keep the informant’s identity confidential. The outcome depends on the rules of evidence, the rules for courts-martial, and the constitutional fairness principles that govern when an informant’s identity must give way.
The informant’s privilege under Military Rule of Evidence 507
Military Rule of Evidence (MRE) 507 establishes a privilege allowing the United States, or a State or subdivision, to refuse to disclose the identity of a person who has furnished information relating to an investigation of a possible violation of law to a law enforcement officer. The privilege belongs to the government, not to the informant, and it reflects the public interest in encouraging people to come forward with information.
The privilege is not absolute. MRE 507 itself contains limits, and disclosure may be required where the informant’s identity is necessary to a fair determination of a material issue. Where the rule’s conditions for disclosure are met, the government must either reveal the identity or accept consequences, which can include exclusion of testimony or other relief.
The constitutional backdrop from Roviaro
The military informant privilege is rooted in the Supreme Court’s decision in Roviaro v. United States. In that case the Court held that although the government has a privilege to withhold the identity of an informant, the privilege is limited by the fundamental requirements of fairness. Where disclosure of an informant’s identity is relevant and helpful to the defense, or essential to a fair determination of a cause, the privilege must give way. The Court rejected any fixed rule, calling instead for a balancing of the public interest in protecting the flow of information against the individual’s right to prepare a defense.
That balancing is fact specific. Courts consider the crime charged, the possible defenses, the significance of the informant’s testimony, and other relevant factors. An informant who merely tipped off investigators is treated very differently from an informant who participated in or witnessed the charged offense and could give material testimony.
Discovery obligations under Rule for Courts-Martial 701
Disclosure questions also intersect with the discovery rules. Rule for Courts-Martial (RCM) 701 governs what the government must provide to the defense. Material relevant to defense preparation, including information about a testifying informant, is frequently discoverable. Investigative files and agent notes related to information an informant provided may fall within these obligations, and favorable or impeaching information about a witness carries additional disclosure significance.
RCM 701 also gives the military judge tools to manage disclosure. Under RCM 701, upon a sufficient showing the judge may order that discovery be denied, restricted, or deferred, or may enter another appropriate order. This is the mechanism through which a judge can protect sensitive information while still ensuring the defense receives what fairness requires.
What happens at the motions hearing
When the defense moves to compel disclosure, the military judge evaluates whether the informant’s identity is relevant and helpful to the defense or essential to a fair trial. The judge may conduct an in camera review, examining the informant information privately to assess its materiality before deciding whether disclosure is warranted. This allows the judge to test the government’s claim and the defense’s need without prematurely exposing the identity.
If the judge determines disclosure is required, the government faces a choice. It can disclose, or it can decline and accept a remedy imposed by the judge, such as striking testimony, suppressing evidence, or in some circumstances dismissing affected charges. To balance interests when disclosure is ordered, the judge can issue a protective order limiting how the defense uses the information, for example by restricting dissemination beyond the defense team.
Practical considerations
Whether a judge orders disclosure turns heavily on the informant’s role. The more central the informant is to the events underlying the charges, and the more the informant could provide testimony bearing on guilt, innocence, or the credibility of government witnesses, the stronger the case for disclosure. Where the informant played only a peripheral tipster role, the privilege is more likely to hold.
For the defense, a well supported motion that explains specifically how the informant’s identity would assist the defense gives the judge a basis to order disclosure or at least an in camera review. For the government, demonstrating that the informant’s information is collateral, or proposing protective measures, supports maintaining confidentiality. In every case the military judge serves as the gatekeeper, applying MRE 507, the Roviaro balancing test, and RCM 701 to decide whether a confidential informant’s identity must be revealed.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
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