◆ SpookStack

Nos. 77-1698, 77-1210 & 77-1370 63 danger the informant might be subjected to if his identity were disclosed. The court concluded that the reliability of Groth’s informant was established by the results of the raid and, therefore, inquiry into his identity was irrelevant. At the end of trial, the judge refused to give instructions to the jury which would have allowed it to decide whether the informant existed and whether information about the informant was relevant to the conspiracy and Fourth Amendment claims of plaintiffs. Since Roviaro v. United States, 353 U.S. 53 (1957), it has been clear that the so-called informer’s privilege (the privilege that protects the identity of a person which otherwise would be required to be disclosed during the course of litigation) is not absolute.2? In Roviaro the Court said, “Where the disclosure of an informer’s identity ... is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Id. at 60-61. The Court went on to explain the test to be applied to determine when disclosure is required: We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that ealls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must de- pend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors. % The trial judge, in his “Summary,” never mentioned Roviaro. In fact, he cited only a Missouri appellate court criminal case, Hx parte McClelland, 521 S.W.2d 481 (Mo. App. 1975), to support his conclusion that Groth was not re- uired to disclose the identity of his informant. Apart from the judge’s obvious failure to apply the appropriate con- trolling precedent, his analysis and reliance on McClelland is not entirely accurate. There is a factual similarity between (Footnote continued on following page)