Supreme Judicial Court (November 19, 2009)

Before relying on a defendant's ex parte affidavit to overcome the Commonwealth's privilege not to disclose the identity of a confidential informant, a judge must provide the Commonwealth with a redacted or summary of the submission so that it may effectively respond.

The defendant was charged with trafficking in Oxycodone based on information provided by a confidential informant. The defendant moved for the disclosure of the identity of the informant, arguing that disclosure was necessary to his defense of entrapment. The defendant submitted an affidavit that included the name of the person he believed to be the informant. Counsel for the defendant asked the judge to review the submission in camera arguing that disclosure of the affidavit to the Commonwealth would be a violation of the defendant's Fifth Amendment privilege. The judge held the in camera review and ruled that the defendant, in his affidavit, had shown that disclosure of the informant's identity was material to the defendant's entrapment defense. The judge ordered the Commonwealth to confirm or deny that the named individual was the confidential informant. If the named individual was the informant, the Commonwealth was further ordered to provide information about promises, rewards, or inducements offered in exchange for his cooperation.

The Commonwealth sought an interlocutory appeal pursuant to G.L. c. 211, § 3, arguing that the judge erred in inviting and accepting the affidavit and in basing his order on it without any meaningful opportunity for the Commonwealth to be heard to protect its privilege not to disclose the informant's identity.

The Supreme Judicial Court reasoned that "where it is not clear from the record that disclosure of an informant's identity would provide something material to the defense, a judge may hold an in camera hearing to assist in making that determination." Commonwealth v. Dias, 451 Mass 463 (2008). However, the Court recognized the delicate balance that must be struck when protecting the right of an informant, the right of a defendant to a fair trial, and the right not to compel a defendant to incriminate oneself. In this case, it was not error for the judge to accept and review the defendant's affidavit, but it was error for the judge not to afford the Commonwealth an opportunity to respond to it.