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SENSITIVE Manl-ID; LHBSAP] LEGAL HANDBOOK FOR SPECIAL AGENTS PART 1 OO eee we tid ah of predisposition to commit a crime will bar application of the entrapment defense, notwithstanding some governmental involvement in the criminal activity. However, the courts have held that fairness will not permit a defendant to be convicted when of informants or agents was outrageous. This differs fro entrapment defense in that the conduct of the Government, the predisposition of the defendant, determines if the de available. As stated in the preceding paragraph, some Gov involvement in criminal activity is permissible. But whe involvement is outrageous, and offends common concepts of courts are prepared to dismiss the charges on Due Process 1 fundamental the conduct the rather than ense is rnment the ecency, grounds. the (2) Whether an informant's conduct offends fundamental fairness is a question which is resolved on a case~by—cas is, therefore, difficult to predict with certainty if a g situation will offend the Due Process standard. Neverthel activity, by its very nature, lends itself to a Due Proces (3) Some of the factors that courts have con deciding whether an informant's conduct violates Due Proeb whether the informant, by himself/herself or with Governme assistance, instigated crime or simply infiltrated an ong enterprise; whether the informant directed or controlled activities of the criminal enterprise or merely took orde criminals involved; and whether the informant supplied the enterprise with a substantial amount of essential resource technical expertise to enable them to commit the offense. existence of any one of the above factors in a case would necessarily result in a court finding that a Due Process occurred. A violation of Due Process is more likely, how more of such circumstances are present. **EFEDte: 05/01/1985 MCRT#: 0 Div: D9 Cav: 8-4 DISCLOSURE OF INFORMANT'S IDENTITY concealing the identities of informants. This concept is informant privilege. The rationale for the privilege is ensure a flow of information about illegal acts to law ent under certain conditions it must be relinquished in favor the defense of the informant's identity. Agents whose iny duties require use of informants can expect frequent cusst (1) Courts have long recognized the necessity officers; and to protect informants from physical harm. Government's privilege of nondisclosure is not absolute, defense asking the courts for disclosure orders. Discuss the factors commonly considered in-connection with such m (2) For the most part, the courts have reject [basis. It ven factual ess, certain s clain. idered in ss are nt ing criminal he criminal s from the criminal s and The not: iolation has ver, where SecCls: of known as the wofold: to orcement he owever, and of informing estigative ns by the d below are tions. ed a fixed rule with respect to disclosure in favor of a balancing test. The public interest in protecting a flow of information about | criminal SENSITIVE Printed: 08/20/2003 06:43:34 Page 7