For reversal -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford and Schreiber. For affirmance or remandment -- Judge Conford. The opinion of the court was delivered by Pashman, J. Conford, P.J.A.D., Temporarily Assigned (dissenting).
[71 NJ Page 377] In this case the Court once again considers the limits of the government's privilege to protect the anonymity of police informers. This issue is presented in the context of a prosecution for unlawful possession and distribution
of heroin. The informer, whose identity the State wishes to conceal, introduced a narcotics agent to defendant, accompanied the agent and defendant to the place where the sale was transacted, but did not actually participate in the sale.
In the fall of 1972 Harry Roberson, an undercover New Jersey State Trooper, was involved in a narcotics investigation conducted in Camden County. Evidence is found in the record to establish the following facts. On November 10, 1972, after meeting with his immediate superior, Trooper Roberson accompanied a police informer to the corner of Pleasant and Darous Avenues in Pennsauken Township. There, the informer introduced him to defendant Preston Milligan. After a conversation about drugs ensued and Milligan stated that he had some "good stuff for sale" at $8 per bag, the agent agreed to purchase $88 worth of heroin from defendant. Although the informer was present throughout the meeting and did participate in the general discussion, he did not negotiate the sale. The meeting lasted about ten minutes.
Roberson, Milligan and the informer drove to defendant's house on Pleasant Avenue in Pennsauken Township. Upon their arrival, the trio entered the house and walked into the living room. The informer then left the others alone in the living room and went to the bathroom. While the informer was out of the room, defendant produced 11 glassine envelopes from a stack of bags lying on the living room table. When defendant asked for the money, the trooper began to haggle about the price. He told defendant that he did not have the full $88 with him, but would be willing to pay $72 for the 11 bags. Milligan agreed and took $72 from Roberson in exchange for 11 bags which were later tested and shown to contain heroin. At trial, Roberson explained that he had bargained with defendant because heroin addicts
are usually short of money; it would have seemed a "little strange" for him not to "hassle" about the price.
No other person was in the living room during the sale. The informer neither witnessed nor participated in the transaction, though he did reenter the room "a few seconds after the transaction had taken place." Roberson, defendant and the informer then departed; Roberson drove the defendant back to the corner where they had first met.
Nearly six months after this incident allegedly occurred, defendant was arrested for possession and distribution of heroin in violation of N.J.S.A. 24:21-20(a)(1) and 24:21-19(a)(1), respectively.*fn1 Prior to trial, defendant moved for disclosure of the name of the informer. Following a preliminary hearing on the matter at which Trooper Roberson testified, the trial judge denied the motion.
At trial, defendant testified on his own behalf. He said that because he was neither working nor attending school when the transaction in question occurred, he was unable to recall where he was or what he was doing on November 10, 1972, the date of the alleged sale. But he did deny that he had ever seen the trooper before the trial and also testified that he had not sold narcotics to anyone on November 10, 1972. The jury found defendant guilty of both offenses and he was sentenced to concurrent indeterminate terms at the Youth Correctional Center at Yardville.*fn2
On appeal, defendant argued that (1) the trial judge erred in denying defendant's motion for disclosure of the informant's name, (2) the conviction for possession of heroin merged with the conviction for distribution of the same heroin and (3) the sentences imposed were manifestly excessive. In an unreported per curiam opinion, the Appellate Division reversed, and ruled that because "the informer was an active participant in the transaction and a material witness on the issue of defendant's guilt," failure to require disclosure of his identity was reversible error. The court found it unnecessary to consider the other two grounds of appeal.
This Court granted the State's petition for certification. 68 N.J. 481 (1975). We now reverse.
At common law there existed a governmental privilege to withhold the identity of informants who assist law enforcement officials. See generally, Donnelly, "Judicial Control of Informants," 60 Yale L.J. 1091 (1951); 8 Wigmore, Evidence (McNaughton rev. 1961) § 2374 at 761-762; Annotation, "Accused's right to and prosecutor's privilege against, disclosure of identity of informer," 76 A.L.R. 2d 262 (1959); Annotation, "Government's privilege to withhold disclosure of identity of informer," 1 L. Ed. 2d 1998 (1957); 2 Underhill, Criminal Evidence (5 ed. 1956) § 327. This privilege has been recognized by the case law of this State, Cashen v. Spann, 66 N.J. 541, 552 (1975), cert. den. 423 U.S. 829, 96 S. Ct. 48, 46 L. Ed. 2d 46 (1975); State v. Oliver, 50 N.J. 39, 41-42 (1967); State v. Burnett, 42 N.J. 377, 380 (1964); State v. Dolce, 41 N.J. 422, 435 (1964); Morss v. Forbes, 24 N.J. 341, 360-362 (1957); State v. Roundtree, 118 N.J. Super. 22, 29-30 (App. Div. 1971); State v. Infante, 116 N.J. Super. 252, 256-257 (App. Div. 1971), and included in the New Jersey Rules of Evidence, Evid. R. 36, and the statute N.J.S.A. 2A:84A-28 which reads:
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 governmental 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.
Because informers serve an indispensable role in police work, it is important to encourage their continued cooperation. For this reason, the so-called "informer's privilege" has long been considered essential to effective enforcement of the criminal code.*fn3 State v. Infante, supra, 116 N.J. Super. at 257; Note, 37 Geo. Wash. L. Rev. 639 (1969); 8 Wigmore, supra, § 2374 at 762. As the United States Supreme Court stated in Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957), the leading case on the informer's privilege:
The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials, and, by preserving their anonymity, encourages them to perform that obligation.
[353 U.S. at 59, 77 S. Ct. at 627, 1 L. Ed. 2d at 644]
Professor Wigmore contributed the following additional comments regarding this privilege and the policies upon which it is founded:
A genuine privilege . . . must be recognized for the identity of persons supplying the government with information concerning the commission
of crimes. Communications of this kind ought to receive encouragement. They are discouraged if the informer's identity is disclosed. Whether an informer is motivated by good citizenship, promise of leniency or prospect of pecuniary reward, he will usually condition his cooperation on an assurance of anonymity -- to protect himself and his family from harm, to preclude adverse social reactions and to avoid the risk of defamation or malicious prosecution actions against him. The government also has an interest in nondisclosure of the identity of its informers. Law enforcement officers often depend upon professional informers to furnish them with a flow of information about ...