Identity of informants

(a) General Rule. The United States or a State or subdivision thereof has a privilege to refuse to disclose the informant. Unless otherwise privileged under these rules, the communications of an informant are not privileged except to the extent necessary to prevent the disclosure of the informant’s identity. (b) Definitions. As used in this rule: (1) “Informant” means a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a person whose official investigation, or the discovery, include duties prosecution of crime. (2) “In camera review” means an inspection of documents or other evidence conducted by the military judge alone in chambers and not on the record. (c) Who May Claim the Privilege. The privilege may be claimed by an appropriate representative of the United States, regardless of whether information was furnished to an officer of the United States or a State or subdivision thereof. The privilege may be claimed by an appropriate representative of a State or subdivision if the information was furnished to an officer thereof, except the privilege will not be allowed if the prosecution objects. (d) Exceptions. (1) Voluntary Disclosures; Informant as a Prosecution Witness. No privilege exists under this rule: (A) if the identity of the informant has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informants own action; or (B) if the informant appears as a witness for the prosecution. (2) Informant as a Defense Witness. If a claim of privilege has been made under this rule, the military judge must, upon motion by the accused, determine whether disclosure of the identity of the informant is necessary to the accused’s defense on the issue of guilt or innocence. Whether such a necessity exists will depend on the particular circumstances of each case, taking into consideration the offense charged, the possible defense, the possible significance of the III-33 informant’s testimony, and other relevant factors. If it appears from the evidence in the case or from other showing by a party that an informant may be able to give testimony necessary to the accused’s defense on the issue of guilt or innocence, the military judge may make any order required by the interests of justice. (3) Informant as a Witness regarding a Motion to Suppress Evidence. If a claim of privilege has been made under this rule with respect to a motion under Mil. R. Evid. 311, the military judge must, upon motion of the accused, determine whether disclosure of the identity of the informant is required by the United States Constitution as applied to members of the Armed Forces. In making this determination, the military judge may make any order required by the interests of justice. (e) Procedures. (1) In Camera Review. If the accused has articulated a basis for disclosure under the standards set forth in this rule, the prosecution may ask the military judge to conduct an in camera review of affidavits or other evidence relevant to disclosure. (2) Order by the Military Judge. If a claim of privilege has been made under this rule, the military judge may make any order required by the interests of justice. (3) Action by the Convening Authority. If the military judge determines that disclosure of the identity of the informant is required under the standards set forth in this rule, and the prosecution elects not to disclose the identity of the informant, the matter must be reported to the convening authority. The convening authority may institute action to secure disclosure of the identity of the informant, terminate the proceedings, or take such other action as may be appropriate under the circumstances. (4) Remedies. If, after a reasonable period of time disclosure is not made, the military judge, sua sponte or upon motion of either counsel and after a hearing if requested by either party, may dismiss the charge or specifications or both to which the information regarding the informant would relate if the military judge determines that further proceedings would materially prejudice a substantial right of the accused.