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E > Manl-ID: LHBSAP1 LEGAL HANDBOOK FOR SPECIAL AGENTS PART 1 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 fundamental fairness will not permit a defendant to be convicted when the conduct of informants or agents was outrageous. This differs from the entrapment defense in that the conduct of the Government, rather than the predisposition of the defendant, determines if the defense is available. As stated in the preceding paragraph, some Government involvement in criminal activity is permissible. But when the involvement is outrageous, and offends common concepts of decency, the courts are prepared to dismiss the charges on Due Process grounds. (2) Whether an informant's conduct offends fundamental fairness is a question which is resolved on a|case-by-case|basis. It is, therefore, difficult to predict with certainty if a given factual situation will offend the Due Process standard. Nevertheless, certain activity, by its very nature, lends itself to a Due Process claim. (3) Some of the factors that courts have considered in deciding whether an informant's conduct violates Due Process are whether the informant, by himself/herself or with Government assistance, instigated crime or simply infiltrated an ongoing criminal enterprise; whether the informant directed or controlled the criminal activities of the criminal enterprise or merely took orders from the criminals involved; and whether the informant supplied the criminal enterprise with a substantial amount of essential resources and technical expertise to enable them to commit the offense. The existence of any one of the above factors in a case would not necessarily result in a court finding that a Due Process violation has occurred. A violation of Due Process is more likely, however, where more of such circumstances are present. **EFEDte: 05/01/1985 MCRT#: 0 Div: D9 Cav:- SecCls: 8-4 DISCLOSURE OF INFORMANT'S IDENTITY (1) Courts have long recognized the necessity of concealing the identities of informants. This concept is known as the informant privilege. The rationale for the privilege is twofold: to ensure a flow of information about illegal acts to law enforcement officers; and to protect informants from physical harm. The Government's privilege of nondisclosure is not absolute, however, and under certain conditions it must be relinquished in favor of informing the defense of the informant's identity. Agents whose investigative duties require use of informants can expect frequent motions by the defense asking the courts for disclosure orders. Discussed below are the factors commonly considered in connection with such motions. (2) For the most part, the courts have rejected a fixed rule with respect to disclosure in favor of a balancing test. The public interest in protecting a flow_of information about criminal S nn 7 Printed: 05/05/2004 13:08:54 | Page