353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957)
In 1955, in the Northern District of Illinois, petitioner Albert Roviaro was indicted on two counts by a federal grand jury.1 The first count charged that on August 12, 1954, at Chicago, Illinois, he sold heroin to one “John Doe” in violation of 26 U. S. C. § 2554 (a).2 The second charged that on the same date and in the same city he did then and there fraudulently and knowingly receive, conceal, buy and facilitate the transportation and concealment after importation of heroin, knowing the same to be imported into the United States contrary to law, in violation of Section 174, Title 21, United States Code.3
Before trial, petitioner moved for a bill of particulars requesting, among other things, the name, address and occupation of “John Doe.”4 The Government objected on the ground that John Doe was an informer and that his identity was privileged.5 The motion was denied.6
Petitioner, who was represented by counsel, waived a jury and was tried by the District Court.7 On the night of August 12, 1954, federal narcotics agents Durham and Fields and Chicago police officers Bryson and Sims met at 75th Street and Prairie Avenue in Chicago with John Doe.8 Doe and his Cadillac car were searched and no narcotics were found.9 Bryson secreted himself in the trunk of Doe’s Cadillac.10 Doe then drove the Cadillac to 70th Place and St. Lawrence Avenue, followed by Durham in one government car and Field and Sims in another.11 After an hour’s wait, at about 11 o’clock, petitioner arrived in a Pontiac, accompanied by an unidentified man.12 Petitioner immediately entered Doe’s Cadillac, taking a front seat beside Doe.13 They then proceeded by a circuitous route to 74th Street near Champlain Avenue.14 Durham saw petitioner alight from the Cadillac about 100 feet away, walk a few feet to a nearby tree, pick up a small package, return to the open right front door of the Cadillac, make a motion as if depositing the package in the car, and then wave to Doe and walk away.15 Durham went immediately to the Cadillac and recovered a package from the floor.16 Meanwhile, Bryson, concealed in the trunk of the Cadillac, had heard a conversation between John Doe and petitioner.17 He heard petitioner greet John Doe and direct him where to drive.18 At one point, petitioner admonished him to pull over to the curb, cut the motor, and turn out the lights so as to lose a “tail.”19 He then told him to continue “further down.”20 Petitioner asked about money Doe owed him.21 He advised Doe that he had brought him “three pieces this time.”22 When Bryson heard Doe being ordered to stop the car, he raised the lid of the trunk slightly.23 After the car stopped, he saw petitioner walk to a tree, pick up a package, and return toward the car.24 He heard petitioner say, “Here it is,” and “I’ll call you in a couple of days.”25 A field test of the powder having indicated that it contained an opium derivative, the officers, at about 12:30 a. m., arrested petitioner at his home and took him, along with Doe, to Chicago police headquarters.26 There petitioner was confronted with Doe, who denied that he knew or had ever seen petitioner.27 Subsequent chemical analysis revealed that the powder contained heroin.28
Petitioner was found guilty on both counts and was sentenced to two years’ imprisonment and a fine of $5 on each count, the sentences to run concurrently.29 The Court of Appeals sustained the conviction.30 The Supreme Court granted certiorari to pass upon the propriety of the nondisclosure of the informer’s identity and to consider an alleged conflict with decisions from other courts of appeals.31
Whether the United States District Court committed reversible error when it allowed the Government to refuse to disclose the identity of an undercover employee who had taken a material part in bringing about the possession of heroin by the accused?32
The government possesses a privilege to withhold the identity of informers who furnish information about violations of law. This privilege is limited by the fundamental requirements of fairness. Where the disclosure of an informer’s identity is relevant and helpful to the defense of an accused or essential to a fair determination of a cause, the privilege must give way. No fixed rule with respect to disclosure is justifiable. The problem calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.33
Yes. The circumstances of this case demonstrate that John Doe’s possible testimony was highly relevant and might have been helpful to the defense. So far as petitioner knew, he and John Doe were alone and unobserved during the crucial occurrence for which he was indicted. Unless petitioner waived his constitutional right not to take the stand in his own defense, John Doe was his one material witness.34
Petitioner’s opportunity to cross-examine Police Officer Bryson and Federal Narcotics Agent Durham was hardly a substitute for an opportunity to examine the man who had been nearest to him and took part in the transaction. Doe had helped to set up the criminal occurrence and had played a prominent part in it. His testimony might have disclosed an entrapment. He might have thrown doubt upon petitioner’s identity or on the identity of the package.35
He was the only witness who might have testified to petitioner’s possible lack of knowledge of the contents of the package that he transported from the tree to John Doe’s car. The desirability of calling John Doe as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the Government to decide.36 Finally, the Government’s use against petitioner of his conversation with John Doe while riding in Doe’s car particularly emphasizes the unfairness of the nondisclosure in this case. The only person, other than petitioner himself, who could controvert, explain or amplify Bryson’s report of this important conversation was John Doe.37
This is a case where the Government’s informer was the sole participant, other than the accused, in the transaction charged. The informer was the only witness in a position to amplify or contradict the testimony of government witnesses. Under these circumstances, the trial court committed prejudicial error in permitting the Government to withhold the identity of its undercover employee in the face of repeated demands by the accused for his disclosure.38
The district court committed reversible error by allowing the government to withhold the identity of the informer whose testimony was material to the defense on the transportation count.39
Related opinions on this issue
Justice Clark dissented, maintaining that the petitioner already knew the informant’s identity through prior associations on Michigan Avenue and at his home, as well as the detailed conversation during the ride that proved their acquaintance.40 Clark argued that the informant’s testimony was unnecessary because direct evidence from officers established possession and transportation of unstamped heroin, triggering the statutory presumption that petitioner failed to rebut.41 He viewed the majority’s ruling as undermining the essential use of informants in narcotics enforcement without any showing of prejudice or a substantial defense such as entrapment, which petitioner’s counsel had rejected at trial.42