The Washington times. [volume] (Washington [D.C.]) 1902-1939, 1929-11-12
JUSTICE GORD0N
CRITICIZED ON
CONTEMPT
(continued From PAEe one)

sWith all due respect, IL
would appear that the court
abused its discretion In com.
hitting these reporters to Jail
for refusing to reveal the
names Of their infOrmers."
The Philippine opinion that
Major Lanier wrote was given at
the request Of the secretary OF
commerce and police. 1t involves
virtually the same issue as that
in the reporters case and there
fore is reprinted here in full:
"Sir: have the honor, IN COM
pliance with your request, TO give
you my opinion as to whether or
not constabulary officers may be
required to disclose in criminal
prosecutions the names Of per.
sons upon whose information such
prosecutions are based.
InfOrmers Protected
"The proper administration Of
justice and the protection Of so
ciety against criminals impera-
lively require that all persons
should be encouraged in the per-
Torrance of their duty, incum-
bent upon all, of communicating
to the proper officials any infor-
nation which they may possess
regarding the commission of q
crime or Of the identity or where
abouts Of the criminal.
TO this end the disclosure in
court Of the names Of persons
who gave such information, either
by the police official who made
the arrest, or by the informer
himself, or by any other person,
will not be permitted.
Gray, CT. in Worthington Y.
Scribner O09 Mass, 4s7, 4SS)
said:
at Is the duty Of every citizen
to communicate to his govern.
ment any information which he
has OF the commission Of an of.
Tense against the laws. To en-.
courage him in performing this
duty without fear Of consequences.
the law holds such information
to be among the secrets Of state,
and leaves the question of how
far and under what circumstances
the names Of the infOrmers and
the channel Of communication
shall be suffered to be known, to
the absolute discretion of the
Government, to be exercised &C.
cOrdinE to its views Of what the
interests Of the public require.
Courts Of justice, therefore, will
not compel or allow the discovery
OF such information, either BY the
subordinate officer to whom It is
given, by the infOrmer himself,
or by any other persons, 'ithout
the permission Of the Govern.
ment.'
Privilege Established
This privilege is well eStab-
lished, and its soundness e mot
be questioned. But it is subject
to certain limitations inherent, in
its logic and its policy, as fol.
lows:
"D The privilege applies only
to the identity Of the informant,
not to the contents Of his state
ment as such. for. by hypothesis,
the contents Of the communication
are to be used and published in
the course Of prosecution. Much
less does the privilege apply to
prevent merely the proof Of con-
tents which have already been de
facto disclosed, as in an action
against the informant for libel.
To deny production IN such . case
is in. effect to declare that the
libel is privileged from liability
II that is indeed the judicial be.
lief and the law, it should be
frankly declared; II not, the &C
ton should not be defeated by an
evasion which pretendS to keep
secret that which is not secret.
"(2) # the identity Of the In
former is known and admitted,
then there is no reason for pre-.
tended concealment, and the
privilege Of secrecy would pe
merely IN artificial obstacle to
proof.
IS. The privilege applies to
communications to such officers
only as have a responsibility or
duty to prevent public wrongs,
and not to officials in general.
How Privilege Appears
q. The privilege applies only
to communications concerning
third persons lnisdoingS. For
example, a persons own state
ment of his own taxable property
or his own unfinished inventions,
to the proper official, may be
protected by some express stat
ute '(based, to be sure, on IN
analogous principle), but not as
an tnformer's disclosure under
this rule.
rs. Even where the privilege
is strictly applicable, the trial
court may compel disclosure, If it
appears necessary in order to
avoid the risk of false testimony
to secure useful testimony. (See
4 Wigmore on Evidence, sec.
23740
Under these authorities I am
of the opinion that constabulary
officers should not he required
to disclose the identity Of infor-
mants upon whose information
crime has been detected and the
criminal or criminals arrested u1-
less the information is material to
6NtarnoiI1e the defendants limo