The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a law-enforcement officer or member of a legislative committee or its staff conducting an investigation.77 This privilege applies only to the identity of the informer, and not to the substance of the communications.78 Further, the privilege applies only to communications to officers having a responsibility or duty to investigate or to prevent public wrongs, and not to officials in general.79
If the identity of the informer or the informer’s interest in the subject matter of the communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer’s own action, or if the informer appears as a witness for the government, the privilege does not apply.80
If it appears in a criminal case that an informer may be able to give testimony which would materially aid the defense or in a civil case which would be relevant to a fair determination of a material issue on the merits of a case in which a public entity is a party and an informed public entity invokes the privilege, the court must give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony.81 However, a defendant attempting to invoke this procedure must make an initial showing beyond mere speculation that the informant has information that would materially aid the defense.81.1
The showing will ordinarily be in the form of affidavits, but the court may direct that testimony be taken if it finds that the matter cannot be resolved satisfactorily upon the affidavits. If a determination of the issue requires the confidential informant to testify, the preferred procedure is that the trial judge question the confidential informer in the presence of the court reporter, and no one else. In using that procedure, the trial judge has discretion to allow the State and the defense to submit interrogatories to be asked of the informer at the in camera hearing. The trial judge has discretion to permit counsel and parties also to be present.81.2
If the court finds that there is a reasonable probability that the informer can give the testimony and the public entity elects not to disclose the informer’s identity, in criminal cases the court on motion of the defendant or on its own motion shall grant appropriate relief, which may include one or more of the following: requiring the prosecuting attorney to comply, granting the defendant additional time or a continuance, or relieving the defendant from making disclosures otherwise required of him, prohibiting the prosecuting attorney from introducing specified evidence, and dismissing the charges. In civil cases, the court may make any order the interests of justice require. Evidence submitted to the court is sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents are not otherwise revealed without the consent of the informed public entity. All counsel and parties are permitted to be present at every stage of the proceedings except a showing in camera, which no counsel or party has the right to attend.82
76. D.R.E. 508(c).
77. D.R.E. 509(a). See also Wheatley v. State, 465 A.2d 1110, 1111 (Del. 1983).
78. State v. Flowers, 316 A.2d 564, 567 (Del. Super 1973).
79. State v. Flowers, 316 A.2d 564, 567 (Del. Super. 1973).
80. D.R.E. 509(c)(l); State v. Flowers, 316 A.2d 564, 567 (Del. Super. 1973).
81. D.R.E. 509(c)(2).
81.1. McNair v. State, No. 261, 2007, Berger, J. (Del. Jan. 23, 2008), disposition reported at 947 A.2d 1122 (Del. 2008) (TABLE); Kennard v. State, No. 74, 2007, Steele, J. (Del. Sept. 6, 2007), disposition reported at 933 A.2d 1250 (Del. 2007) (TABLE).
81.2. Butcher v. State, 906 A.2d 798, 804 (Del. 2006).
82. D.R.E. 509(c)(2).
© 2010 David L. Finger