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Manl-ID: LHBSAP1 LEGAL HANDBOOK FOR SPECIAL AGENTS PART 1 conduct must be balanced against the individual's right to prepare his/her defense. Diverse holdings often result. Nevertheless, some guidance can be gained by examining the settings in which disclosure motions are made. **EfEDte: 05/01/1985 MCRT#: 0 Div: D9 Cav: SecCls: 8-4.1 Pretrial Hearings Often a defense motion for disclosure is made for the purpose of attacking, on Fourth Amendment grounds, the Government's case at a pretrial stage, such as a preliminary examination or suppression hearing. In discovering the informant's identity, the defense may hope to use the informant as a witness, and establish that the information he/she furnished did not constitute probable cause for arrest. The majority rule is that there is no constitutional requirement for disclosure when the sole issue is probable cause. Thus, most courts deny defense motions made for that purpose. Because hearsay is admissible on the issue of probable cause (Agents can testify to what the informant said), it is unnecessary to require disclosure for a probable cause hearing. Additionally, the fact that informant information may be used in complaints and affidavits without divulging the identity of the source, militates against requiring disclosure. **kEFEDte: 05/01/1985 MCRT#: 0 Div: D9 Cav: SecCls: 8-4.2 Trial At trial, the issue is guilt or innocence, not probable cause, and thus different considerations bear on the question of disclosure. As a general rule, if the court determines that disclosure would be relevant and helpful to the defense, or essential to a fair determination of the case, it will grant the defendant's motion. Again, the courts weigh the defendant's need to prepare his/her defense against the Government's interest in preserving its informant's anonymity. Many factors go into this determination. Among them are the informant's role in the case, the availability of other witnesses, the substance of the informant's testimony, if called as a witness, and the theory of the defense. **EfEDte: 05/01/1985 MCRT#: 0 Div: D9 Cav: SecCls: 8-4.2.1 Role of Informant (1) Generally the courts will not require disclosure if an informant's activities were limited to being a witness to a Printed: 05/05/2004 13:08:54 Page 8