                 This opinion is subject to revision before final
                      publication in the Pacific Reporter

                                 2016 UT 52


                                    IN THE
       SUPREME COURT OF THE STATE OF UTAH

                              KYLER NIELSEN,
                                Appellant,
                                       v.
                              STATE OF UTAH,
                                 Appellee.

                             No. 20140745
                       Filed November 18, 2016

                            On Direct Appeal

                   Fourth District, Provo Dep’t
                The Honorable David N. Mortensen
                         No. 131402457

                              Attorneys:
         Margaret P. Lindsay, Douglas J. Thompson, Provo,
                            for appellant
      Sean D. Reyes, Att’y Gen., John J. Nielsen, Salt Lake City,
                             for appellee

    JUSTICE DURHAM authored the opinion of the court in which
       CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
           JUSTICE HIMONAS, and JUSTICE PEARCE JOINED.

   JUSTICE DURHAM, opinion of the Court:
                           INTRODUCTION
    ¶1 In this criminal case, the State claimed a privilege under rule
505 of the Utah Rules of Evidence to refuse to disclose the identity of
a confidential informant. Rule 505 provides that if the State exercises
this privilege in a case where the district court determines that there
is a reasonable probability that the informant can give testimony
necessary to a fair determination of the issue of the defendant’s guilt
or innocence, the court must dismiss the charges associated with this
testimony.
                          NIELSEN v. STATE
                         Opinion of the Court
    ¶2 We must decide in this appeal whether the district court
applied the correct legal standard when it ruled that rule 505 did not
require the dismissal of the charges against the defendant. Relying
upon an opinion of this court that applied a prior version of the
current rule 505, the district court used a three-factor balancing test.
But the defendant argues that rule 505 required the court to consider
only one factor: whether the confidential informant could provide
testimony necessary to his defense.
    ¶3 We agree with the defendant that the district court applied
the wrong legal test. The plain language of rule 505 requires the
district court to consider only the necessity of the confidential
informant’s likely testimony to a fair determination of the guilt or
innocence of the defendant. We therefore reverse and remand for
further proceedings.
                            BACKGROUND
    ¶4 A confidential informant told a Utah County officer that
M.G. was selling the drug ecstasy and that she had plans to travel to
a rave with friends. Based on this information, officers pulled over a
vehicle driven by M.G. Kyler Nielsen was one of four passengers in
the vehicle. Officers searched the vehicle and discovered ecstasy pills
in the center console, in a cargo compartment behind one of the
seats, and in a backpack located in the rear passenger compartment.
Mr. Nielsen admitted that the backpack was his, but claimed that the
ecstasy belonged to M.G. The State charged Mr. Nielsen with
possession of a controlled substance.
    ¶5 Mr. Nielsen moved to compel the State to reveal the
confidential informant’s name, address, and telephone number, as
well as other information about the informant. Invoking rule 505 of
the Utah Rules of Evidence, the State opposed the motion to compel.
Rule 505 grants the State the “privilege to refuse to disclose the
identity of an informer,” unless the informer’s identity has already
been disclosed or the informer appears as a government witness.
UTAH R. EVID. 505(b), (d). But if the State invokes this privilege and
there is a “reasonable probability” that the informer can “give
testimony necessary to a fair determination of the issue of guilt or
innocence in a criminal case,” the district court “shall dismiss the
charges to which the testimony would relate.” UTAH R. EVID.
505(e)(1)–(2).
    ¶6 The district court elected under rule 505(e)(1) to conduct an
in camera interview to determine whether the informant possessed
knowledge relevant to Mr. Nielsen’s guilt or innocence. But the
interview never took place. An officer claimed that the informant

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refused to participate in the interview because M.G. had threatened
on social media that the informant would be hurt if discovered.
    ¶7 After the informant refused to appear, the district court
concluded that rule 505 did not require it to dismiss the charges
against Mr. Nielsen. Relying upon this court’s opinions in State v.
Forshee, 611 P.2d 1222 (Utah 1980) and State v. Nielsen, 727 P.2d 188
(Utah 1986), the court applied a three-factor balancing test, weighing
(1) “the defendant’s need for disclosure in order to prepare a
defense,” (2) “the potential safety hazards to the persons involved,”
and (3) “the public interest in preserving the flow of information
from informants.” Nielsen, 727 P.2d at 193. Considering the “totality
of the circumstances” under these three factors, the district court
concluded that rule 505 did not require a dismissal.
   ¶8 Mr. Nielsen went to trial and was convicted of possession of
a controlled substance. He appeals, arguing that the district court’s
rule 505 ruling was erroneous.
                        STANDARD OF REVIEW
   ¶9 In this appeal, we must decide whether the district court
applied the correct legal standard when it found that rule 505 did not
require it to dismiss the charges against Mr. Nielsen. 1 “We review
the district court’s decision de novo, according no deference to its
legal determination.” State v. Steinly, 2015 UT 15, ¶ 7, 345 P.3d 1182.
                                ANALYSIS
    ¶10 The confidential informant privilege was first recognized in
Utah in 1971, when this court adopted rule 36 of the Utah Rules of
Evidence. This rule stated that “[a] witness ha[d] a privilege to refuse
to disclose the identity of [an informant] . . . unless . . . disclosure of
his identity is essential to assure a fair determination of the issues.”
UTAH R. EVID. 36 (1971). While rule 36 was in effect, we decided
Forshee. In that case, relying on the U.S. Supreme Court case of
Roviaro v. United States, 353 U.S. 53 (1957), we stated that the question
of whether to compel disclosure was “based on a balancing of
several factors, i.e., potential hazards to the safety of parties

   1 Mr. Nielsen also argues that even if the district court applied the
correct test, it erred when it concluded that dismissal was not
required. We do not address this argument because we determine
that the district court applied the wrong test. Furthermore, we do not
address whether the confidential informant’s refusal to participate in
the in camera interview affects the rule 505 analysis because this issue
was never raised.

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                          Opinion of the Court
involved, the public interest in protecting the flow of information
from informants, and the defendant’s right to prepare his defense.”
Forshee, 611 P.2d at 1225.
    ¶11 In 1983, we removed rule 36 and all other privilege rules
from the Utah Rules of Evidence. We adopted a new rule stating that
“[p]rivilege is governed by the common law, except as modified by
statute or court rule.” UTAH R. EVID. 501 (1983). During this
common-law period, we decided Nielsen, which cited Forshee for the
proposition that “[t]he trial court must weigh several factors in
determining whether to require disclosure: the defendant’s need for
disclosure in order to prepare a defense, the potential safety hazards
to the persons involved, and the public interest in preserving the
flow of information from informants.” 727 P.2d at 193.
    ¶12 The common-law privilege period ended in 1992, when this
court amended rule 501 to state that “no person shall have a
privilege to withhold evidence except as provided by these or other
rules adopted by the Utah Supreme Court or by existing statutory
provisions not in conflict with them.” UTAH R. EVID. 501 (1992). We
also adopted several rules that describe the privileges acknowledged
in this state, including rule 505, which lays out the confidential
informant privilege. UTAH R. EVID. 505 (1992). We have not
previously interpreted or applied this rule.
    ¶13 The current version of rule 505 gives the State “a privilege to
refuse to disclose the identity of an informer.” UTAH R. EVID. 505(b).
But this privilege comes with an important caveat. In a criminal case,
a judge must determine whether “there is reasonable probability”
that the confidential informant can “give testimony necessary to a
fair determination of the issue of guilt or innocence.” UTAH R. EVID.
505(e)(1) –(2). 2 If the judge answers in the affirmative, the State is put
to a choice. It can waive the privilege, or, if “the government elects
not to disclose the informer’s identity, the judge, on motion of the
defendant in a criminal case, shall dismiss the charges to which the
testimony would relate.” UTAH R. EVID. 505(e)(2).


   2 Rule 505(e)(2) states the test for determining whether dismissal
is required. It provides that if the State claims this privilege and
“there is reasonable probability that the informer can give the
testimony,” the court shall dismiss the charges related to this
testimony. Rule 505(e)(1) clarifies that the phrase “the testimony”
refers to “testimony necessary to a fair determination of the issue of
guilt or innocence.”


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                         Opinion of the Court

    ¶14 Rule 505 places a single condition on the unfettered exercise
of the confidential informant privilege: the absence of a reasonable
probability that the confidential informant can give testimony
essential to a determination of the defendant’s guilt or innocence.
Mr. Nielsen argues that district courts should follow the plain
language of rule 505 and evaluate only whether this condition has
been met. Thus, he asserts that the district court applied the wrong
legal standard when it employed the Forshee three-factor balancing
test to determine whether it had an obligation to dismiss the charges
against him.
    ¶15 The State, on the other hand, argues that the trial court
applied the correct legal standard when it used the Forshee balancing
test. It contends that, in addition to the plain language of rule 505,
courts should also weigh “potential hazards to the safety of parties
involved” and “the public interest in protecting the flow of
information from informants” when deciding whether the rule
requires dismissal. See Forshee, 611 P.2d at 1225. The State argues that
although Forshee interpreted a previous version of the confidential
informant rule, it remains binding authority that controls the proper
interpretation of rule 505.
   ¶16 The State first contends that the advisory committee note to
rule 505 incorporates the Forshee balancing test. The language cited
by the State, however, provides no guidance on this question. The
advisory committee note states:
           Rule 505 incorporates the concept reflected in
       Roviaro v. United States, 353 U.S. 53, 1 L.Ed.2d 639, 77
       S.Ct. 623 (1957), that the government has a “privilege to
       withhold from disclosure the identity of persons who
       furnish information of violations of law to officers
       charged with the enforcement of that law.” The Utah
       Supreme Court adopted the Roviaro approach in State
       v. Forshee, 611 P.2d 1222 (Utah 1980).
UTAH R. EVID. 505, advisory committee’s note to 2011 amendment.
This portion of the note merely traces some of the history of the
confidential informant privilege. It does not counteract the plain
language of rule 505 that describes the conditions under which the
State’s use of the privilege requires a dismissal.
    ¶17 In fact, another section of the advisory committee note
confirms that the relevant test is located in the rule itself. The note
later states: “Subparagraph (d)(1) sets forth the test to be applied by
the court in determining whether to allow the privilege or to require
the government to elect to disclose the identity of the informer or to

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                         Opinion of the Court
dismiss, in a criminal case.” Id. After the advisory committee note
was written, rule 505 was revised such that the language from
former subparagraph (d)(1) was renumbered as subparagraph (e).
Compare UTAH R. EVID. 505(e) with UTAH R. EVID. 505(d)(1) (1992).
Thus, the note affirms that the applicable legal standard is laid out in
the language of subpart (e) of the current rule.
    ¶18 Next, the State argues that because some of the language
from the former rule 36 appears in the current rule 505, the Forshee
balancing test was “transplanted” into the new rule. In support of
this contention, the State cites the interpretive rule of thumb that
“[w]hen a word or phrase is ‘transplanted from another legal source,
whether the common law or other legislation, it brings the old soil
with it.’” Winward v. State, 2015 UT 61, ¶ 12, 355 P.3d 1022 (citation
omitted). In other words, “[w]hen the legislature [or this court]
‘borrows terms of art in which are accumulated the legal tradition
and meaning of centuries of practice, it presumably knows and
adopts the cluster of ideas that were attached to each borrowed
word in the body of learning from which it was taken.’” Maxfield v.
Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647 (citation omitted). The State
contends that similarities between the phrase “essential to assure a
fair determination of the issues” in the old rule 36 and the phrase
“necessary to a fair determination of the issue of guilt or innocence”
in the current rule 505(e)(1) signal an intent to import the Forshee
gloss on rule 36 into rule 505.
    ¶19 The State’s argument is flawed. Using Forshee as a source of
meaning for rule 505(e)(1) is problematic on several grounds. First,
Forshee did not tie its three-factor balancing test to an interpretation
of the language of rule 36. Forshee simply pronounced the balancing
test; it did not anchor it in the text of the rule. 611 P.2d at 1224–25.
Thus, there is no interpretation attached to a particular word or
phrase in rule 36 to be carried forward. No “old soil” was fastened to
the words of rule 36 that could be transplanted into rule 505. See
Winward, 2015 UT 61, ¶ 12. In fact, the arguable “old soil” in question
was the Roviaro standard, cited with favor in Forshee and referenced
again by the current advisory committee note to rule 505.
    ¶20 We conclude that Forshee, while purporting to rely on
Roviaro in adding safety and public interest factors to its balancing
test, actually strayed from Roviaro’s holding and standard. The court
in Roviaro clearly says:
         A further limitation on the applicability of the
     privilege arises from the fundamental requirements of
     fairness. Where the disclosure of an informer’s identity,
     or of the contents of his communication, is relevant and

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     helpful to the defense of an accused, or is essential to a
     fair determination of a cause, the privilege must give
     way.
353 U.S. at 60–61. Even the dissent in Roviaro agreed that “[o]f course
where enforcement of a non-disclosure policy deprives an accused
of a fair trial it must either be relaxed or the prosecution must be
foregone.” Id. at 67 (Clark, J., dissenting).
    ¶21 Forshee thus misinterpreted Roviaro. The language of rule 36
actually adopted Roviaro’s framework. The rule’s use of “essential to
assure a fair determination of the issues,“ UTAH R. EVID. 36 (1971),
closely tracks Roviaro’s “essential to a fair determination of a cause.”
353 U.S. at 61. It also tracks Roviaro in not allowing the privilege
when “the identity of the person furnishing the information has
already been otherwise disclosed.” UTAH R. EVID. 36 (1971). In fact,
Forshee even recognized that the rule 36 privilege “closely resembles
the scope of the privilege set forth in [Roviaro].” 611 P.2d at 1224. But
the court in Forshee went astray when it added additional factors, not
part of the rule’s language or the Roviaro analysis. This confused the
law for a time, and we acknowledge that the trial judge in this case
was understandably misled. Rule 505 once again tracks Roviaro, not
Forshee’s multi-factor gloss. Thus, Forshee misconstrued rule 36 itself,
and the plain language in rule 505 now restores the proper scope of
the analysis.
                             CONCLUSION
    ¶22 We reverse Mr. Nielsen’s conviction and remand for further
proceedings. On remand, the trial court must conduct proceedings
consistent with rule 505, which we read to require that, once the
government invokes the privilege, the court must make a
determination of whether “an informer may be able to give
testimony necessary to a fair determination of the issue of guilt or
innocence in a criminal case.” UTAH R. EVID. 505(e)(1). Relying on the
“evidence in the case” and any “showing by a party,” “the judge
may give the government an opportunity to show in camera facts
relevant to determining whether the informer can, in fact, supply the
testimony.” Id. UTAH R. EVID. 505(e)(1). If the district court ultimately
decides that rule 505(e)(2) permits dismissal because “there is
reasonable probability that the informer can give the testimony,” the
State can waive the confidential informant privilege and retry Mr.
Nielsen, or the State can choose to assert the privilege. If the
privilege is asserted, then the judge can either dismiss the charge
against Nielsen upon a motion from the defense, or, at the judge’s
discretion, “dismiss the charges on the judge’s own motion.” Id.

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