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Olivia Covington for www.theindianalawyer.com

A Vigo County man facing drug charges will now be able to review a video of a controlled drug buy between himself and an informant after the Indiana Supreme Court decided Friday that the disclosure of the video would be relevant and helpful to his case.

In Marvin Beville v. State of Indiana, 84S01-1606-CR-347, Marvin Beville was accused of selling marijuana to a confidential informant and was subsequently charged with dealing in marijuana and maintaining a common nuisance. The state informed Beville that it had a video recording of the controlled buy, but only offered to let Beville’s public defender review the video at the prosecutor’s office.

Beville then made multiple attempts to obtain a copy of the video for his own review, including filing a motion to compel. The state claimed the informer’s privilege allowed the withholding of any item that could reveal the informant’s identity.

The public defender argued that allowing Beville to review the video was “fundamental to (their) preparation,” and the video might not reveal the informant’s identity because the camera was likely pointed at Beville.

The Vigo Superior Court denied the motion to compel, but did not issue findings of fact or conclusions of law.

A divided Indiana Court of Appeals affirmed in a March 2016 memorandum decision, holding that the state showed a “paramount interest” in protecting the informant’s identity, though Judge Elaine Brown dissented. The Indiana Supreme Court also disagreed with the Vigo Superior Court and reversed its decision to withhold the video from Belville.

Chief Justice Loretta Rush noted that the court had not resolved how the informer’s privilege and three-part Dillard discovery test work together. Beville argued that the informer’s privilege does not apply to his case, and that even if it did, the state failed to carry its burden to withhold the video under the Dillard test because it did not prove its “paramount interest” in doing so.

The justices agreed with Belville that his motion to compel should have been granted, but the court took a different legal analysis to reach that conclusion. According to the court’s unanimous opinion, if the state properly asserts the informer’s privilege, then the Dillard test is not applicable to the case.

“Thus, the State need not show a ‘paramount interest’ in withholding evidence revealing a CI’s identity, even if a defendant can demonstrate particularity and relevance,” Rush wrote. “Rather, a valid assertion of the informer’s privilege shifts the burden to the defendant to demonstrate that disclosure of the requested evidence is either relevant and helpful to his defense or necessary for a fair trial.”

In a situation in which it is unknown whether the informer’s privilege applies, the state could ask the trial court to review the video in camera to determine whether it contains privileged information, Rush said. But given that the state failed to meet its burden of establishing the essential elements of the privilege, the chief justice wrote that the denial of the motion to compel was an abuse of discretion.

However, even if the state had proven that the video would have revealed the informant’s identity, the court found that Beville would have been entitled to the video, regardless, because he carried his burden of establishing that the evidence was “relevant and helpful to his defense.”