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

¶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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Opinion of the Court

3

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.
NIELSEN v. STATE

Opinion of the Court

4

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

5

¶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 
NIELSEN v. STATE

Opinion of the Court

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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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Opinion of the Court

7

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.