State v. Harris , 91 Wash. 2d 145 ( 1978 )

Hicks, J.

(concurring in part; dissenting in part) — I have no quarrel with the result fashioned by the majority when applied to the normal factual pattern. This is not such a case, however. Of the myriad of cases enumerated by the majority, only one is cited as having facts similar to the case on appeal; and I am sharply in disagreement as to the applicability of that one, United States v. Doe, 525 F.2d 878 (5th Cir.), cert. denied, United States v. Lujan, 425 U.S. 976, 48 L. Ed. 2d 801, 96 S. Ct. 2179 (1976).

In Doe, only one defendant was charged and tried, and disclosure of the informant was refused. In the present case, however, a single transaction resulted in the charging of two defendants who had separate trials before different judges. The trial of appellant Harris occurred first and disclosure of the informant was denied. At the trial of the second defendant, disclosure of the informant was compelled and he testified. His identity is now known to the world.

The majority holds that this case "should be remanded for an in camera session between the trial judge and the informer to determine whether the State should have been required to disclose the informer's identity at appellant's trial." The Roviaro inquiry into disclosure of the identity of an informant centers on the likelihood that the informant possesses facts which are "relevant and helpful" to the accused in preparing a defense. Roviaro v. United States, 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623 (1957). An in camera hearing has been found to be the appropriate procedural vehicle to accommodate conflicting concerns: "A limited disclosure of identity and information to the trial judge recognizes the government's interest in maintaining anonymity ..." United States v. Freund, 525 F.2d 873, 877 (5th Cir. 1976).

On remand, in this particular case, what purpose will be served by holding a Roviaro type determination in an in camera session? The government's reason for anonymity and protecting the identification of its informant no longer exists. There are no adverse interests to balance. Only the issue of the defendant's right to confrontation and cross-examination remains.

In remanding for further proceedings to determine if disclosure should have been required at the original trial, the fact that the informant's identity is now known cannot be disregarded.

In camera procedure is inappropriate when in camera protection is no longer required. I dissent on that issue. The hearing on remand should be in open court with cross-examination permitted to the defendant.

Rosellini, Hamilton, and Brachtenbach, JJ., concur with Hicks, J.