For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Hall. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J.
[50 NJ Page 40] Defendant Oliver was convicted of bookmaking in violation of N.J.S. 2A:112-3. The Appellate Division reversed because the trial court refused to order the State to disclose the identity of an informer. State v. Oliver, 92 N.J. Super. 228 (App. Div. 1966). We granted certification, 48 N.J. 143 (1966). The case was argued with State v. Bacsko, 50 N.J. 49 (1967), and State v. Krempecki, 50 N.J. 50 (1967), both decided today. which involve the same issue. In Bacsko, another part of the Appellate Division, in an unreported opinion, upheld the refusal to order disclosure. Krempecki, in which the trial court also refused to order disclosure, was not considered by the Appellate Division because we certified it before argument there.
Oliver was charged with making book between April 13 and May 27, 1964. The principal witness for the State was Trooper Walter T. Decker of the State Police, an undercover agent with its Gambling Squad. He testified to bookmaking activities by Oliver at a tavern in New Brunswick, owned by one Del Bono, on three dates prior to the day of a raid under a search warrant.
The State made no reference to an informer but the defense, on cross-examination of Decker, elicited the fact that on all three occasions prior to the day of the raid an informer was seated with him at the bar. The informer did not place a bet. Nor did Decker. We gather the informer accompanied Decker only because the informer was a familiar figure at the bar and hence his presence tended to shield Decker from the suspicion he might have generated as a stranger. The informer was not there to be a witness but rather to make Decker less conspicuous. The Appellate Division said that Decker testified "that upon comparing his observations with those of the informer they were in some respects not in accord" (92 N.J. Super., at p. 240). We do not read his testimony to be that there was a conflict upon anything, but rather that since the informer did not concentrate upon evidence of bookmaking, he did not see or hear some of the things Decker noted. There is nothing to suggest the informer would have contradicted any material testimony of Decker.
Defendant first contends the unnamed man was beyond the common-law informer privilege and its codification in N.J.S.A. 2A:84A-28,*fn1 see State v. Burnett, 42 N.J. 377, 380
(1964), because he acted for pecuniary reward and was paid not merely for what he knew but also to seek out violations in places accessible to him. The Appellate Division correctly held that neither fact took him beyond the privilege.
The privilege exists to secure a flow of vital information which can be had only upon a confidential basis. Not all such information comes from people of high motivation. The police must have the aid of men of lesser quality who respond to selfish inducements, including money. These men are needed for what they know, but also for what they can learn because of their associations. This is especially true with respect to crimes of a consensual nature as to which there is little likelihood that a victim will complain. See Lewis v. United States, 385 U.S. 206, 87 S. Ct. 424, 17 L. Ed. 2 d 312, 316, n. 6 (1966), and McCray v. State of Illinois, 386 U.S. 300, 87 S. Ct. 1056, 18 L. Ed. 2 d 62, 71 (1967). The informer, paid or not, is subject to risks of retaliation which a regular member of a police force need not fear and hence, whether paid or not, he comes within the protection of the privilege.
But we think the Appellate Division erred in holding that the State must disclose the identity of the informer. Here the informer played no part whatever in the criminal event. He did not bet, or induce defendant to accept a bet from anyone. Nor did the State attempt to get into the record of the trial anything the informer may have seen or said. It was the defense that brought out his presence at the scene, obviously to raise the immediate issue. But the defense was unable to show that the informer's testimony was necessary for a fair determination of the issues in the case. The defense could advance nothing more than an ungrounded hope that if the informer were called as a defense witness, he would say something which would somehow discredit the trooper and lead to an acquittal. We are not referred to any case which calls for a disclosure of a nonparticipant informer upon that rootless speculation.
In Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2 d 639 (1957), the informer was a principal actor in the offense. He was the immediate party to the sale of the narcotics, and for a portion of the time he and the defendant were alone. Further the informer denied that he had ever seen the defendant when he was confronted with him. The Court did not say an informer must be revealed merely because he knows something about the criminal event. Rather the opinion reads (353 U.S., at p. 62, 77 S. Ct., at p. 628, 1 L. Ed. 2 d, at p. 646):
"We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls 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 depend 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."
In holding that there the identity of the informer had to be revealed upon that balance, the Court stressed the prominence of the informer's role, the fact that his conversation with defendant was used by the prosecution, the nature of the defenses the circumstances affirmatively suggested might be available, and finally ...