State v. Milligan

Coneokd, P. J. A. D.,

Temporarily Assigned (dissenting). A consideration of the nature of the defense and of the informer’s role in the crime here alleged leads me to believe this is a proper case for either disclosure to the defendant of the informer’s identity or for an in camera examination of the informer by the judge, alone, to investigate the possible helpfulness of the informer to defendant if called as a witness.

The following facts are relevant. The defendant swore, in defense, that he had never encountered Trooper Roberson prior to the trial, or sold narcotics to him or to anyone on the date alleged by the State. He was at a disadvantage in presenting an alibi because at the time of the incident charged defendant was not working but was receiving unemployment benefits, and he was not arrested or charged until six months thereafter. Cf. State v. Roundtree, 118 N. J. Super. 22, 30-31 (App. Div. 1971). As was pointed out by the United States Supreme Court in the leading Roviaro case cited by the majority (353 U. S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639), opinion, ante page 385, as to the informer in that case, the informer here, too, was defendant’s “one material witness” and had helped to set up the criminal occurrence and had played a prominent part in it”. See 353 U. S. at 63-65, 77 S. Ct. at 629-630. Further, “[t]his is a case where the Government’s informer was the sole participant [aside from the testifying undercover agent] other than the accused, in the transaction charged.” Ibid.

It seems to me that at least where the defendant takes the stand and denies participation in the criminal event, the court should indulge the presumption of innocence, to which defendant is always entitled before conviction, for the pur*398pose of evaluating whether, to quote our statute and rule, disclosure of the identity of the informer “is essential to assure a fair determination of the issues”. N. J. S. A. 2A: 84A-28, Evid. R. 36. On that presumption, the hope of the defendant that the informer will tell the truth if subpoenaed and thus either exculpate defendant outright or reveal weaknesses in the State’s case should not be denigrated as “conjecture” or as the “remote possibility that an informer’s testimony might serve some defendant,” to cite the comments in State v. Oliver, 50 N. J. 39, 47 (1967). Observations of tbe latter kind seem to indulge, for the purpose indicated, a working hypothesis of the defendant’s guilt rather than innocence; or, at the least, an assumption that even if a defendant is in fact innocent, the informer will probably certify his guilt when called to the stand. Such an attitude would seem to convert the statutory exception as to the instance where disclosure “is essential to assure a fair determination of the issues” into mere lip-service to the attainment of justice rather than an instrumentality thereof.

I am fully cognizant of the dilemma in cases of this kind facing the court, ably portrayed in the court’s opinion'. But I cannot concur in the philosophy of' State v. Oliver, supra, cited with apparent approval by the court, that “[t]he balance contemplated by Roviaro must be struck in favor of law and order.” 50 N. J. at 48. I would strike that balance in favor of giving the defendant a chance to corroborate his sworn denial of criminal implication by calling an informer, who, by the State’s own evidence, has participated in the alleged criminal transaction as centrally as this one.

There is only the court to assure justice to a defendant. There is the whole executive arm of the Government to enforce law and order. And there can be no greater blot on justice than the conviction of an innocent defendant.

Finally, I would suggest the plain lack of rationality in the Oliver criterion as to whether the informer has participated in the criminal transaction as distinguished from merely witnessing it. See State v. Oliver, supra (50 N. J. *399at 46); court’s opinion, ante page 388. It is obvious that if a defendant were in fact innocent of the particular charge a truthful informant who allegedly “witnessed” the transaction, according to testimony of the undercover agent, would be as helpful to the defendant if called as one who had supposedly “participated” in it. The interests of “a fair determination of the issues” is served no 1'ess by revealing the name of the former informant than the latter.

I would either affirm the judgment of the Appellate Division, or remand for the purpose I have indicated.

For reversal—Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford and Schkeiber—6.

For affirmance or remandment—Judge Conford—1.