As Rocky Marciano Reminds Us–The Government-Informant Privilege Applies in Civil Actions

What does Rocky Mariciano, one of the greatest heavyweight boxers of all time, have to do with evidentiary privileges? Plenty, as it turns out, for it was a libel case arising from Mariciano’s comments following his famous 1952 fight against Jersey Joe Walcott that solidified the then-evolving theory that the government-information privilege applies in civil actions.

The Government-Informant Privilege

The government-informant privilege protects from compelled disclosure the identity of persons, or informers, who supply information about legal violations to the appropriate law-enforcement personnel. Despite the name’s implication, the privilege belongs to the government, not the informer, but protects informers from retaliation or retribution and encourages citizens to communicate their knowledge of violations of law to government officials.

The privilege is qualified, meaning that it may be overcome upon a sufficient showing of need by the defendant. In a landmark decision, the Supreme Court in Roviaro v. United States, 353 U.S. 53 (1957), explained that the privilege must “give way” when disclosure of the informer’s identity is relevant and helpful to the defense or is essential to a fair determination of the cause. And to determine whether either of these standards is met, courts must balance the public’s interest in keeping the informer’s identity confidential against the defendant’s right to prepare a defense.

There is no fixed rule on when disclosure is required; courts must make the assessment on a case-by-case basis,and have sole discretion to determine whether the evidence justifies disclosure.  The court must consider several factors when balancing the competing interests, such as the crime charged, the possible defenses, significance of the informer’s testimony, and danger to the informant if his identity is revealed.

Does the Privilege Apply in Civil Actions?

The government-informant privilege is routinely asserted in criminal cases, with the typical situation involving a criminally accused seeking to discover the identity of the informer who provided police with the tip that led to the accused’s arrest.  But the question arises whether this privilege may be applied in civil actions and, if so, whether the same standard governs the privilege.

The situation can arise in two situations.  First, a plaintiff may seek disclosure of an informer’s identity during a civil action against the government, such as a civil rights action under 42 U.S.C § 1983.  Similarly, a party involved in a civil action against another private party may seek third-party discovery from a law-enforcement agency.  Second, the question arises whether private entities may assert the government-informant privilege to preclude disclosure of a whistleblower, or one who reported misconduct up the corporate chain of command in addition to a regulatory enforcement agency.

In the latter situation, most courts hold that the privilege does not apply where the whistleblower’s identity is sought from the private entity, but in the former situation, most courts hold that the privilege applies where the informer’s identity is sought from a governmental agency.  And a case involving one of the greatest fights–and knockout punches–of Rocky Marciano’s career illustrates the point.

Rocky Marciano & the Greatest Punch of All-Time

With a record of 49-0, Rocky Marciano is the only boxer to retire as heavyweight champion with an undefeated record and is recognized as one of the greatest boxers of all time.  Marciano won his title on September 23, 1952 when he defeated reigning champion Jersey Joe Walcott by a Round 13 knockout.  Marciano later described the knockout punch as “the best punch I ever landed,” and boxing historians generally agree that Marciano’s punch was one of the greatest punches in all of boxing history.  For a replay of the famous punch, check out this Youtube video.

The Scandal

While most remember Marciano’s famous knockout punch, a scandal involving Jersey Joe Walcott’s manager developed following the fight.  In a 1956 article titled “Dirty Work at Ringside” and published in the Saturday Evening Post, Marciano claimed that Walcott’s manager, Felix Bocchicchio, rubbed capsicum Vaseline on Walcott’s boxing gloves and upper part of his body.  And with every punch landed by Walcott and whenever Marciano’s face contacted Walcott’s upper body, the capsicum Vaseline infiltrated his eyes.  Marciano described his predicament this way:

I’m sure Jersey Joe had nothing to do with this. He was a hellava fighter that night, even without the extra help.  But by the end of the sixth round my eyes were burning.  They burnt so bad during the seventh and eighth rounds I could hardly hold them open.  To see Walcott, I had to lift my head to look out at him from under my lids.  That way I had to hold up my chin in the air.  That way I was a real easy target.

Almost a year later, a Philadelphia policeman told Marciano that a police informant told him that Walcott’s manager, Bocchicchio, obtained the capsicum Vaseline and intentionally rubbed the medicine on Walcott’s gloves and upper body.  The article contained this damning quote:

Somehow or other, this capsicum got to Bocchicchio, and I don’t know why that should be so complicated, because anybody can buy the stuff in a drugstore.  But my informant was afraid for his life if he told how it got to Bocchicchio.  Well, in the ring it was rubbed on Walcott’s gloves and shoulders, and whenever you’d go into a clinch with him or whenever he jabbed you, it would rub off into your eyes.

The Lawsuit and the Government-Informant Privilege

Bocchicchio was not pleased with the article, and filed a libel action against Curtis Publishing Company, the publisher of the Saturday Evening Post.  Bocchicchio’s counsel called the policeman to testify and

October 6, 1956 Saturday Evening Post issue containing Marciano’s capsicum vaseline claims

asked the informer’s name.  The policeman refused, citing the government-informant privilege.

The Court agreed and did not force the policeman to reveal his informer’s identity.  The Court recognized that the privilege is most often applied in criminal cases, but that it applies in civil cases as well. The Court noted that the privilege recognizes citizens’ obligations to communicate their knowledge of violations of law to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.

Not only did the Court apply the privilege in this civil action, it noted that “The Federal Courts have consistently indicated that the strength of this privilege is greater in civil cases such as this than in criminal cases.”  See Bocchicchio v. Curtis Publishing Co., 203 F. Supp. 403 (E.D. Pa. 1962).

The jury returned a defense verdict and Bocchicchio’s libel action was dismissed. By this time (1962), Marciano had defeated Jersey Joe Walcott a second time and retired as the only undefeated heavyweight boxing champion.  And one of the lasting legacies of the famous 1952 bout is the solidification that the government-informant privilege not only applies in civil actions, but does so with greater strength than in criminal cases.