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OPINIONS OF THE SUPREME COURT OF OHIO
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The State of Ohio, Appellant, v. Brown, Appellee.
[Cite as State v. Brown (1992), Ohio St.3d .]
Criminal law -- Evidence -- Witnesses -- Criminal defendant has
constitutional right to compulsory process over a
potential witness he believes acted as an informant in his
case and whose testimony would be relevant and aid in his
defense.
(No. 91-1417 -- Submitted May 12, 1992 -- Decided
September 9, 1992.)
Appeal from the Court of Appeals for Stark County, No.
CA-8338
On May 10, 1990, an undercover agent from the Stark County
Metropolitan Narcotics Unit was patrolling the Belden Avenue
area of Canton, Ohio, in an unmarked Metro vehicle, as a part
of an operation to purchase illicit drugs on the street. The
agent was wearing a body transmitter that permitted
surveillance agents nearby to monitor and tape the agent's
conversations. Assisting the undercover agent in the
operation, and accompanying him in the vehicle, was a female
confidential informant.
According to the agent, during the course of the patrol
the confidential informant saw an individual on the street and
identified him as Cornelius Brown. The surveillance agents
captured this identification on tape via the agent's body
transmitter. At the time of the purported identification, the
agent was not familiar with and could not have identified by
name the individual pointed out by the confidential informant.
The individual identified by the confidential informant
approached the passenger side of the vehicle and leaned in the
window to speak to the agent and the confidential informant.
The agent then informed the individual that he wanted to buy a
"twenty dollar rock" of crack cocaine. According to the agent,
the individual directed him to go around the block and park on
the opposite side of Belden Avenue where he would meet them
again.
After the agent drove his vehicle to the new location, the
individual approached the vehicle again. At that point, the
agent handed the confidential informant twenty dollars. The

informant then exited the vehicle and walked with the
individual to a location approximately twenty to fifty feet to
the rear of the vehicle. By looking intermittently through the
rear-view mirror of the vehicle, the agent observed the
confidential informant hand the individual a twenty dollar bill
and also observed the individual place an item into the
informant's hand. The informant then returned to the vehicle
and handed the agent a piece of an off-white, solid substance
that later proved to be crack cocaine.
Subsequently, Cornelius Brown, defendant-appellee herein,
was arrested and charged with one count of aggravated
trafficking in cocaine. His indictment included a sentence
enhancement specification alleging that he had been previously
convicted of a felony drug-abuse offense. On September 4,
1990, Brown's trial before a jury on the charge and
specification commenced.
Prior to jury selection, Brown moved for disclosure of the
identity of the confidential informant. The state objected to
the motion as untimely, and pointed out to the court that Brown
had subpoenaed someone whom Brown believed was the confidential
informant.
Brown's trial counsel informed the court that the person
subpoenaed, "Patty Smith, also known as Patty May," had failed
to appear, and argued that Brown had the right to cross-examine
her concerning her role in the transaction, if any, the degree
of her participation and the accuracy of her identification of
Brown. The court deferred ruling on the motion pending its
review of the tape containing the confidential informant's
alleged identification of appellee and also pending further
argument by counsel on the issues raised by the motion.
After jury selection, the presentation of opening
statements and the examination of the first witness, the
undercover agent, the court recessed the trial for lunch.
Prior to reconvening after the lunch recess, the state moved to
quash the subpoena of Patty Smith, a.k.a Patty May. The court,
over Brown's objection, granted the motion and quashed the
subpoena. The tape containing the confidential informant's
identification of Brown as the individual involved in the drug
transaction was later admitted into evidence, but the jury was
instructed to disregard any statements by a third party that
purportedly identified Brown as a participant in the drug
transaction.
At the end of the trial, the jury found Brown guilty of
aggravated trafficking and further found that he had been
previously convicted of a felony drug-abuse offense. The court
entered a judgment of conviction, sentenced Brown to a term of
four to fifteen years, incarceration, and imposed a mandatory
fine of $5,000.
Brown appealed to the court of appeals, which reversed his
conviction and remanded the cause to the trial court for a new
trial. The court of appeals held that the trial court's
quashing of the subpoena, without at least an in camera
interrogation of the witness summoned by the accused to testify
on his behalf (in the belief that she was the confidential
informant), violated Brown's right to compulsory process under
both the United States and the Ohio Constitutions.

This cause is now before the court pursuant to the
allowance of a motion for leave to appeal.

Robert D. Horowitz, Prosecuting Attorney, and Ronald Mark
Caldwell, for appellant.
Randall M. Dana, Ohio Public Defender, John A. Bay and
Shelly R. Smith, for appellee.

Wright, J., This case involves a narrow issue: whether
a criminal defendant has a constitutional right to compulsory
process over a potential witness who he believes acted as an
informant in his case, and whose testimony, he asserts, would
be relevant and aid in his defense. For the reasons that
follow, we uphold the judgment of the court of appeals.
In State v. Williams (1983), 4 Ohio St.3d 74, 4 OBR 196,
446 N.E.2d 779, we last addressed the issue of when the
identity of a confidential informant must be disclosed to a
criminal defendant. Quite simply, "[t]he identity of an
informant must be revealed * * * when the testimony of the
informant is vital to establishing an element of the crime or
would be helpful or beneficial to the accused in preparing or
making a defense to criminal charges." Id. at syllabus.
In applying Williams to quash the subpoena of the supposed
informant, the trial court found that Brown had not made a
clear showing that the informant's identity had been known or
was known in the community or that the safety of the informant
would not be at stake if the court required her presence before
the court. The court found that Brown's need for the
informant's testimony was outweighed by concerns for the
protection of the identity of the informant.
We agree with the court of appeals that the trial court
erred in quashing the subpoena without investigating further
whether the person subpoenaed was indeed the confidential
informant and, if so, whether her testimony would in any way
aid Brown in his defense. Few rights are more fundamental than
the right of an accused to present witnesses on his behalf.
Taylor v. Illinois (1988), 484 U.S. 400, 408, 108 S.Ct. 646,
652, 98 L.Ed.2d 798, 810. The balance the court must strike
between the defendant's right to compulsory process and the
state's right to protect its informant's identity is so fine
that a determination must come only after a thorough analysis
of the facts of each case. See State v. Phillips (1971), 27
Ohio St.2d 294, 297-298, 56 O.O.2d 174, 176, 272 N.E.2d 347,
349-350. In order to ensure that an accused's right to
compulsory process is protected, it thus is essential that a
trial court make the necessary inquiries before concluding that
the testimony of a witness subpoenaed would not be relevant to
the accused's defense.
As we discussed in Williams, "* * * when the degree of
participation of the informant is such that the informant
virtually becomes a state's witness, the balance swings in
favor of requiring disclosure of the informant's identity.
Conversely, where disclosure would not be helpful or beneficial
to the accused, the identity of the informant need not be
revealed." Williams, supra, at 76, 4 OBR at 197-198, 446
N.E.2d at 781. Here, the confidential informant was likely the

sole person to witness the entire transaction; as the record
reflects, the agent who observed the transaction did not hear
the conversation between the informant and appellee, nor was
his observation of the informant uninterrupted. It is thus
more than mere speculation that the informant's testimony would
be relevant, and Brown's assertion that the informant's
testimony would have aided his defense cannot be rejected out
of hand.
When a defendant has attempted to subpoena, by name, a
person who he believes was the confidential informant in his
case, a trial court must be firmly convinced that the witness
would not in any way assist the defendant's case before
quashing the subpoena of such witness. In order to strike a
proper balance between the state's interest in the "'* * *
furtherance and protection of the public interest in effective
law enforcement,'" State v. Roe (1971), 26 Ohio St.2d 243, 246,
55 O.O.2d 480, 482, 271 N.E.2d 296, 298, and a defendant's
right under the United States and Ohio Constitutions to have
the court compel the attendance of witnesses who may provide
testimony that is material and favorable to the defendant, see
United States v. Valenzuela-Bernal (1982), 458 U.S. 858, 102
S.Ct. 3440, 73 L.Ed.2d 1193, a trial court should enforce the
subpoena at least for the limited purpose of conducting an in
camera examination of the witness, unless it is manifestly
clear that the testimony will in no way aid the defendant.
Without making such an inquiry, the court will be unable to
determine whether the person subpoenaed is indeed the
confidential informant involved in the case, or to determine
whether the need for that informant's testimony outweighs the
state's interest in preserving the informant's identity. In
the instance in which the witness has exculpatory testimony to
give, the need for the testimony will generally outweigh the
state's interest in identity preservation.
We contrast the situation presented by the present case
with that in which the defendant has not attempted to subpoena
by name an individual he believes served as a confidential
informant, but rather has merely requested the disclosure of
the name of the informant. In that instance, as was the case
in Williams, the burden is on the defendant to show that the
need for the testimony of the informant outweighs the
government's interest in keeping the identity of the informant
secret. When the defendant demonstrates that the testimony
would be vital to establish an element of the crime, or that
the testimony would be helpful or beneficial, that burden is
fully discharged.
When, as in the case at bar, the government seeks to quash
the subpoena, it bears the burden of demonstrating that the
informant's testimony would not aid the defendant. In order to
properly balance the defendant's right to compulsory process
against the government's interest in confidentiality in light
of the government's burden, it is essential to a fair trial for
both the defendant and the government that the court examine
the subpoenaed witness in camera to assess the scope and tenor
of his or her testimony before granting or denying the motion
to quash. In the event that a defendant is wholly unable to
rebut the state's certain argument that the witness's testimony

will not aid the defense,1 or if the state submits evidence
that the person subpoenaed is not the informant in the case,
the trial court is permitted to forgo this important step.
Because the trial court failed to examine the subpoenaed
witness prior to quashing the subpoena, we agree with the court
of appeals that the appellee's right to compulsory process was
violated and that this cause should be remanded for a new
trial. Accordingly, the judgment of the court of appeals is
affirmed.
Judgment affirmed.
Moyer, C.J., Sweeney, Douglas and H. Brown, JJ., concur.
Resnick, J., concurs in judgment only.
Holmes, J., dissents.
FOOTNOTE:
1 In Williams, supra, the transaction was witnessed in
its entirety by a police officer who was in close proximity to
the event. At all times, the informant's hands were in plain
sight so as to eliminate the possibility that the informant
switched the packet given to him by defendant Williams for one
containing cocaine. Additionally, the identity of Williams was
confirmed by three officers who observed the transaction.
Under those facts, which differ considerably from the case at
bar, the testimony of the informant would likely not have aided
the defendant, unless the defendant had raised a defense of
entrapment, which he did not. Thus, even if the defendant in
Williams had attempted to compel the testimony of someone he
believed was the confidential informant involved in the drug
transaction, the trial court could have reasonably concluded,
without an in camera examination, that the testimony would not
have assisted the defendant.
Holmes, J., dissenting. I am in agreement with the
majority that the controlling precedent is State v. Williams
(1983), 4 Ohio St.3d 74, 4 OBR 196, 446 N.E.2d 779. However,
while paying lip service to the syllabus in Williams, the
majority has effectively and in cavalier disregard of the
policies underlying that decision, undermined the public's
interest in protecting the anonymity of confidential
informants. For this reason, I dissent.
Before arriving at our syllabus in Williams, we recognized
two competing interests: (1) the state's right in maintaining
the anonymity of its informants and (2) the accused's right to
confront and cross-examine the state's witnesses. In order to
compel disclosure of a confidential informant, we held that the
defendant was required to demonstrate either that the
informant's testimony is "vital to establishing an element of
the crime" or that the testimony of the informant "would be
helpful or beneficial to the accused in preparing or making a
defense to criminal charges." Id. at syllabus. In either
instance, it is incumbent on the defendant to make the
requisite specific showing. Properly applied, Williams places
the burden on the defendant to oppose the prosecution's efforts
to quash a subpoena by demonstrating that his or her interest
in revealing the informant's identity outweighs the need for
secrecy.
Before the defendant can overcome the government's
privilege to refrain from disclosing the identity of an

informant, other courts have required the defendant to make a
specific showing of how the informant's testimony would
significantly aid him in establishing an asserted defense. See
United States v. Diaz (C.A.5, 1981), 655 F.2d 580, 588. "* * *
[S]peculation regarding what an informant might possibly
testify to is not sufficient to require disclosure." United
States v. Halbert (C.A.10, 1982), 668 F.2d 489, 496. See,
also, State v. Butler (1984), 9 Ohio St.3d 156, 9 OBR 445, 459
N.E.2d 536 (Even where the defense is entrapment, the defendant
is required to plead specific facts before a trial judge is
required to order divulgence of the informant's identity.).
The majority has entirely relieved the accused of this
burden by permitting in all cases an in camera interrogation of
the confidential informant where the prosecution has failed to
show that "it is manifestly clear that the testimony will in no
way aid the defendant." As the law now stands, the informant's
identity will be revealed to defense counsel and the court upon
mere speculation that the informant has exculpatory evidence to
give. In all like cases to follow, the prosecution will have
to demonstrate that the testimony of the informant is not
needed to establish an element of the crime, and would not be
beneficial in any way to the defense of the charges.
The case sub judice does not involve a situation where,
before the accused can be found guilty beyond a reasonable
doubt, the prosecution must introduce the testimony of a
confidential informant. Unlike State v. Phillips (1971), 27
Ohio St.2d 294, 56 O.O.2d 174, 272 N.E.2d 347, a case in which
we ordered disclosure of the informant's identity because the
informant was the sole witness to the sale of drugs, the drug
transaction involving the appellee was witnessed by an
undercover agent. The agent testified that he saw the
informant hand appellee a twenty dollar bill. By turning
around as much as possible without looking suspicious and by
looking into his rear view mirror, the agent was able to
observe appellee place an item in the informant's hand, which
was later examined and found to be crack cocaine. On the basis
of this evidence, appellee could properly be convicted of
aggravated trafficking. It was not necessary for the state to
present the testimony of the confidential informant. Had
appellee been able to give an argument as to why the
informant's testimony was material to his innocence, appellee
would clearly have been entitled to subpoena this witness. In
this scenario the scope of the "informant's privilege" would
properly be restricted by the defendant's right to a fair trial.
Since I believe that appellee failed to demonstrate that
his interest in presenting the confidential informant as a
witness on his behalf, his right to compulsory process under
both the United States and Ohio Constitutions was not
violated.
Accordingly, I would reverse the judgment of the court of
appeals.