Commonwealth v. Kelsey
SJC-11087
The matter before the Supreme Judicial Court is whether a
defendant facing probation revocation due to an alleged new criminal offense is
entitled to disclosure of the identity of an informant who participated in the
alleged offense. The Court concluded
that it was error to deny the defendant’s motion on the ground that disclosure
is never required in probation revocation proceedings. The judgment of the trial court was vacated
and remanded for further proceedings.
The Supreme
Judicial Court acknowledged that while a probationer does not need to be
afforded the full panoply of constitutional protections, the due process clause
requires that they have the opportunity to present a defense. This means having the chance to be heard and
to present witnesses and documentary evidence in their favor. A probationer’s challenge to this right will
only survive if the lower court denied him the opportunity to present evidence
relevant to “whether the probationer indeed violated the conditions of his [or
her] probation.” Commonwealth v. Durling, 407 Mass. 108, 116 (1990).
Disclosure
of an informant’s identity to a criminal defendant requires a balance between
the public’s interests in protecting the flow of information against the
defendant’s right to prepare his or her defense. However, the extent of a probationer’s right
to present a defense is not parallel with that of a criminal defendant. Rather, in the probation revocation context,
the need for the defendant to know the identity of the informant is considered
under the totality of the circumstances.
The
Supreme Judicial Court found that while probationers are not afforded the full
array of constitutional protections, the defendant’s motion was still
improperly denied, because disclosure of the identity of an informant may be
appropriate in certain situations. Here,
the motion judge’s summary denial of the
defendant’s motion on the ground that disclosure was never required in
probation revocation hearings was improper.
Written 7/1/2013
