Legal Definitions - informant's privilege

The informant's privilege is a legal principle that allows the government to refuse to disclose the identity of an individual who has provided information to law enforcement or other government agencies about a violation of the law. This privilege is designed to encourage citizens to report criminal activity or regulatory breaches without fear of reprisal and to protect the effectiveness of ongoing investigations.

While the government generally has the right to keep an informant's identity confidential, this privilege is not absolute. A court may order disclosure if the informant's identity is deemed essential to a fair defense for an accused person, such as when the informant was a direct participant in the alleged crime or their testimony is critical to establishing innocence.

Here are some examples illustrating the informant's privilege:

• Drug Trafficking Investigation: Police receive an anonymous tip about a large-scale methamphetamine manufacturing operation occurring in a secluded rural property. Based on this information, and after conducting further surveillance and investigation, officers obtain a search warrant, raid the property, and arrest several individuals, seizing a significant amount of illegal drugs and equipment.

  Explanation: During the subsequent criminal trial, the defense attorneys for the arrested individuals request the identity of the anonymous tipster, arguing it is crucial to their defense. The prosecution invokes the informant's privilege to protect the tipster's identity. Disclosing the informant's name could put them at risk of retaliation and deter others from reporting similar crimes. Unless the court finds that the informant's identity is absolutely essential for the defendants to receive a fair trial (e.g., if the informant was a co-conspirator and not just a source of information), the privilege would likely be upheld.

• Corporate Fraud Whistleblower: An employee at a large financial services firm anonymously reports to the Securities and Exchange Commission (SEC) that their company is systematically engaging in fraudulent accounting practices to inflate earnings. The SEC launches an investigation, gathers extensive evidence, and eventually files civil charges against the company and several senior executives.

  Explanation: During the legal proceedings, the defense lawyers for the executives demand to know the identity of the whistleblower. The SEC would assert the informant's privilege to protect the employee. This protection encourages individuals to come forward with information about corporate wrongdoing without fear of professional retaliation or harassment from their employers or colleagues, thereby promoting market integrity. The court would weigh the public interest in protecting whistleblowers against the defendants' right to a fair defense.

• Environmental Violation Report: A concerned citizen anonymously alerts the Environmental Protection Agency (EPA) to a local factory that is illegally dumping hazardous waste into a nearby river, causing significant ecological damage. EPA investigators visit the site, confirm the violations, and initiate legal action against the factory owner.

  Explanation: The factory owner, facing substantial fines and potential criminal charges, demands to know who reported them. The EPA would invoke the informant's privilege to shield the resident's identity. This ensures that individuals feel safe reporting environmental crimes, which are often difficult to detect without insider knowledge, without fear of retribution from powerful corporations or individuals. The privilege helps maintain a flow of critical information necessary for environmental protection.