(dissenting):
In the particular circumstances of this case I cannot agree that the trial judge abused her discretion, e. g., United States v. Harrison, 139 U.S.App.D.C. 266, 267, 432 F.2d 1328, 1329 (1970); Garibay-Gareia v. United States, 362 F.2d 509, 510 (9th Cir. 1966), in ordering disclosure of the informer’s identity.
The only helpful Supreme Court case on the question is Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed. 2d 639 (1957). There the Court said (at 62, 77 S.Ct. at 628)
that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime *1072charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.
The crime charged here was armed robbery. The defense was alibi and mistaken identity. Thus if the informer had information as to who participated in the robbery, there is no doubt that it would be highly relevant, and the informer’s identity would have to be disclosed. Roviaro v. United States, supra; United States v. Barnett, 418 F.2d 309, 311-312 (6th Cir. 1969); United States v. Roberts, 388 F.2d 646, 649 (2d Cir. 1968).
The difficulty in this ease arises from the fact that the record does not show with clarity whether or not the informer (as a participant or witness or otherwise) had information as to who participated in the robbery. The question then becomes, how certain must the court be that the informer has relevant testimony before the government must reveal his identity. An unadorned assertion of need by the defense, e. g., Anderson v. United States, 106 U.S.App.D.C. 340, 273 F.2d 75, cert. denied, 361 U.S. 844, 80 S.Ct. 95, 4 L.Ed.2d 81 (1959), or a speculative possibility which comes “from [the] fertile imagination of counsel,” Miller v. United States, 273 F.2d 279, 281 (5th Cir. 1959), cert. denied 362 U.S. 928, 80 S.Ct. 756, 4 L.Ed.2d 747 (1960), is plainly not enough. But today the court has gone to the other extreme. It imposes on the defendant a “heavy burden * * * to establish that the identity of an informant is necessary to his defense.” Roviaro, of course, imposed no such burden. Indeed, the Supreme Court in that case spoke of “the possible significance of the informer’s testimony” (353 U.S. at 62, 77 S.Ct. at 629; emphasis added), and noted that the “testimony might have disclosed an entrapment,” or “might have thrown doubt upon petitioner’s identity” (353 U.S. at 64, 77 S.Ct. at 629; emphasis added).1
The proper standard, in my view, is the one suggested in the Proposed Rules of Evidence, drafted by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. Rule 510(e) (2), reprinted in 51 F.R.D. 378, reads:
If an election is made not to disclose the identity of an informer and the circumstances indicate a reasonable probability that the informer can give testimony . . . necessary to a fair determination of a material issue in the case, the judge shall * * * dismiss the proceedings * * *.
See also Price v. Superior Court, 1 Cal. 3d 836, 83 Cal.Rptr. 369, 463 P.2d 721 (1970).
This test, like Roviaro itself, does not place the burden of persuasion on either party. Instead, it instructs the court to examine the circumstances of the case to decide how likely it is that the informer has relevant testimony. It leaves room for recognizing that the defendant is the party least able to carry a heavy burden of establishing anything about the informer. Only the government has access to the informer. The defendant must depend on the government’s employees — often, as here, the very police officer who investigated the crime — to find out what information the informer has. The court does not suggest otherwise. Thus placing a heavy burden on the defendant emasculates the Supreme Court’s holding that “[w]here the disclosure of an informer’s identity * * is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way,” Roviaro v. United States, su*1073pra 353 U.S. at 60-61, 77 S.Ct. at 628 (footnote omitted).
Under my view of the test to be applied, the trial judge properly ordered disclosure. The record reveals “a reasonable probability that the informer can give testimony necessary to a fair determination” of guilt or innocence. The informer knew a considerable amount about the crime: in particular he knew where the shotgun used in the robbery had come from, where the shotgun was then located, and most significantly, that one Francis Reichert, who had been indicted along with appellant, had held the shotgun during the robbery. The extent of his knowledge, combined with the improbability that he simply overheard a conversation about so serious a crime, indicate that he may well have been a participant or some sort of insider. This conclusion is buttressed by the fact that the informer reported that appellant and another hired someone to kill the main government witness. The government introduced nothing of its own to negate this conclusion, and steadfastly refused to produce the informer for in camera interrogation by the judge, at the courthouse or elsewhere.
Moreover, there are “other relevant factors” present here which the trial judge could properly consider under Ro-viaro in assessing the likelihood that the informer had relevant testimony to offer. Appellee made an impressive showing that the police officer who provided all the information we have about the informer had a strong reason to be prejudiced against the appellee.2 Also, the trial judge saw and heard the officer on the stand, and she explicitly noted in her order that the officer injected “prejudicial testimony into the case” which justified setting aside the jury verdict. In these extraordinary circumstances, we cannot indulge the presumption that the government has revealed everything that the informer knew. Thus the need to secure the informant’s own testimony became uniquely important. Cf. People v. Clifton, 42 Ill.2d 526, 250 N.E.2d 649 (1969). Accordingly, I would affirm the trial court’s order.3
. The court's reliance on Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964) is misplaced. There the defendant at trial had sought the informer’s name only with respect to probable cause, cf. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1987), and consequently had not prepared a record on which the Supreme Court could pass on the question whether the informer’s name was needed for a fair trial. 376 U.S. at 534r-535, 84 S.Ct. 825.
. The appellant had been the informer who helped convict the officer’s friend, a former policeman in whose behalf the officer had testified.
. Since it seems clear that we have jurisdiction under 23 D.C.Code § 105(a) (Supp. III, 1970), as amended, 23 D.C. Code § 23-104 (c) (Supp. IV, 1971), see Carroll v. United States, 354 U.S. 394, 408-415, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957) ; Mann v. United States, 113 U.S.App.D.C. 27, 28 n. 1, 304 F.2d 394, 395 n. 1, cert. denied, 371 U.S. 896, 83 S.Ct. 194, 9 L.Ed.2d 127 (1962), I express no opinion on whether we have jurisdiction under 18 U.S.C. § 3731 (Supp. V. 1970). See Will v. United States, 389 U.S. 90, 97 n. 5, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967) (dicta) ; United States v. Apex Distrib. Co., 270 F.2d 747 (9th Cir. 1959). Section 3731 has recently been amended, but the amendment has no effect on this case. See Omnibus Crime Control Act of 1970 § 14, 84 Stat. 1890.