Can defendants demand confidential informant identities at preliminary hearings? State v. Garner Explained

In State v. Garner, the Utah Court of Appeals addressed whether defendants have the right to learn the identities of confidential informants whose written statements are used against them at preliminary hearings. The court’s decision provides important guidance on the scope of the government informer privilege under Utah Rule of Evidence 505.

Background and Facts
Gary Ray Garner faced three counts of trafficking methamphetamine based on alleged sales to two confidential informants working with police. On each occasion, the informants were searched before meeting Garner and turned over methamphetamine afterward. Each informant completed handwritten statements describing the transactions in an officer’s presence. At the preliminary hearing, the State offered these anonymous statements as evidence, prompting Garner to object and demand disclosure of the informants’ identities.

Key Legal Issues
The central question was whether Utah Rule of Evidence 505’s exception to the government informer privilege applied when informants’ written statements were admitted at preliminary hearings. Rule 505 generally protects informant identities but requires disclosure when “the informer appears as a witness for the government.” Garner argued this exception was triggered by submitting the written statements.

Court’s Analysis and Holding
The Court of Appeals rejected Garner’s argument, emphasizing that “appears as a witness” requires physical presence in court to testify. Written statements alone do not constitute an “appearance” within the meaning of Rule 505. The court noted that the 1995 amendment to Article I, Section 12 of the Utah Constitution removed confrontation clause constraints from preliminary hearings, eliminating any constitutional right to learn informants’ identities at this stage.

Practice Implications
This decision confirms that the government informer privilege remains robust at preliminary hearings. Defense counsel cannot force disclosure of confidential informant identities merely by having their written statements admitted as evidence. The timing distinction is crucial—defendants may learn informant identities before trial if informants testify, but not during preliminary proceedings. Practitioners should focus challenges on statement reliability under Rule 1102 rather than demanding identity disclosure at the preliminary hearing stage.