Antell, A.j.s.c., Temporarily Assigned.
[143 NJSuper Page 561] In this action, which sounds essentially in defamation, plaintiffs seek compensatory and punitive damages from three police officers for wrongfully obtaining and executing a search warrant upon plaintiffs' home. Their instant application is for an
order to identify the informant whose information partially formed the basis of defendants' affidavit upon which the warrant issued. This phase of the proceeding is before us on remand from the Supreme Court, Cashen v. Spann , 66 N.J. 541 (1975), whose opinion modified the prior judgment of the Appellate Division, 125 N.J. Super. 386 (1973). In considering this application we are governed by standards outlined for us by the Supreme Court at pages 555-557 of its opinion. These require us to weigh the facts tending to show possible unfairness to plaintiffs from denying disclosure against possible harm to state interests resulting from disclosure. In this connection our attention is directed, " inter alia " to the nature of the claims asserted by plaintiffs, their actual loss, their reasons for seeking disclosure, and the necessity of the information to plaintiffs' case. We are also to consider possible prejudice to pending and future prosecutions and the risk of possible harm to the informant. We are cautioned, also, that within the civil setting the application for disclosure is not as compelling as in the criminal.
On June 19, 1970 plaintiffs' home was visited by investigators and detectives from the office of the Morris County Prosecutor. They had a search warrant issued by a County Court judge in reliance upon an affidavit prepared by defendants and sworn to by defendant Bickley. Among other things, the affidavit recounted advice given to him by an informant that plaintiff Paul Cashen was engaged in bookmaking at the Picatinny Arsenal. The specifics of the affidavit and the circumstances leading up to the raid are detailed in the opinion of the Appellate Division (125 N.J. Super. at 393 through 395.) It suffices to say that the entire incident was characterized by the Appellate Division as a "bizarre mistake," a conclusion drawn from four clearly identified falsehoods in the affidavit, and with which the Supreme Court was evidently in agreement. 66 N.J. at 544. The data attributed in Bickley's affidavit to the informant are among the falsehoods catalogued.
Following the suggestion of the Supreme Court, the factual record has been supplemented to the extent the parties have chosen to do so.
Although taken by defendants, plaintiff Paul Cashen's deposition of June 18, 1975 was received into evidence on plaintiffs' offer. We learn therefrom that at the time of the incident Cashen was subject to no physical abuse, and that the detention which he relies on for a cause of action consisted only of the policeman holding his forearm while guiding him into the house. Cashen responded to this by slapping the policeman's hand away and adjuring him not to touch him, a request which was heeded. The deposition also disclosed that plaintiffs have sustained no out-of-pocket loss. The only adverse consequence that has come to Cashen's attention is that his neighbors teasingly address him as a "bookie."
The raid conducted at the Cashen home produced no evidence of criminal conduct and accordingly no charges were ever filed against Cashen. However, the investigation into which he was mistakenly drawn gave rise to gambling indictments against others. The Cashen deposition discloses that plaintiffs' first contact with their present attorneys consisted of telephone calls made by the latter to Cashen. They represented certain of the indicted parties and sought Cashen's cooperation as a witness. The record is unclear as to the sequence of events which then followed, but it is found that following the entry of guilty pleas by those defendants the attorneys' representation of the plaintiffs began. Their retainer is on a contingent fee basis, without any understanding yet expressed as to payment of costs. Plaintiffs have so far borne no part of the costs of this litigation, notwithstanding that these may already approximate "thousands of dollars." Cashen's understanding is that he has no responsibility for the payment of costs, regardless of how the litigation ends. He has no idea who is meeting these expenses and has not asked. The reason which he gave for
wanting the informer's name is to join him as a party defendant to this action.
The court also heard from Stephen R. Champi, who is the Somerset County Prosecutor and who serves as president of the New Jersey County Prosecutors Association. His testimony stressed the detriment to law enforcement which would follow from disclosure. He testified that informants are vital to efforts against organized crime and that without their assistance there would be no way of infiltrating its ranks. He further testified that without being able to give an assurance of absolute confidentiality, the availability of informants' services would be seriously curtailed. He explained that the average informant's intellectual capabilities and motivations are not such that qualified assurances could be made understandable to him. Once an officer starts to explain to his informant that there may be circumstances under which he could not guarantee the informant's anonymity, the informant's willingness to cooperate dissolves. On this basis he rests his belief that ordering disclosure herein would be profoundly detrimental to law enforcement.
Defendants' resistance to this motion is bottomed upon Evid. R. 36. It provides:
A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or the United States or a government division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues.
The privilege is by no means absolute. State v. Oliver , 50 N.J. 39 (1967); State v. Infante , 116 N.J. Super. 252, 257 (App. Div. 1971); State v. Roundtree , 118 N.J. Super. 22, 31 (App. Div. 1971). That the drafters of the rule never intended to accommodate the State's claimed need ...