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NCJ Number: 69229 Find in a Library
Title: NEED FOR AN OBJECTIVE APPROACH TO PROSECUTORIAL MISCONDUCT
Journal: BROOKLYN LAW REVIEW  Volume:46  Issue:2  Dated:(WINTER 1980)  Pages:249-267
Author(s): R M COHN
Date Published: 1980
Page Count: 19
Format: Article
Language: English
Country: United States of America
Annotation: NEED FOR A COHERENT ENTRAPMENT PHILOSOPHY AND CONSISTENT STANDARDS TO TEST THE LEGITIMACY OF GOVERNMENT INVOLVEMENT IN PROVOKING CRIME ARE DISCUSSED.
Abstract: COURTS HAVE AVOIDED FORMULATING SOLUTIONS TO THE PROBLEM OF GOVERNMENT INSTIGATION OF CRIMES TO CAPTURE WANTED OFFENDERS. THE U.S. SUPREME COURT, IN SORRELLS V. UNITED STATES, ACCEPTED ENTRAPMENT AS A DEFENSE EXAMINING GOVERNMENT CONDUCT SOLELY FOR ITS POTENTIAL TO INDUCE AN 'OTHERWISE INNOCENT' DEFENDANT TO COMMIT A CRIME. THIS RULING GAVE THE GOVERNMENT TOO MUCH FREEDOM TO USE 'OUTRAGEOUS'MEANS TO INDUCE A 'CRIMINALLY DISPOSED' DEFENDANT INTO CRIME. THE COURT RULED IN UNITED STATES V. RUSSELL THAT IF DUE PROCESS PRINCIPLES ARE INFRINGED UPON, THE ENTRAPMENT DEFENSE CAN BE USED BY DEFENDANTS. HOWEVER, A LATER DECISION (HAMPTON V. UNITED STATES) PUTS THE FORMER RULING IN DOUBT. ALTHOUGH THE HAMPTON CASE INDICATES A DUE PROCESS DEFENSE AGAINST GOVERNMENT MISCONDUCT DOES EXIST, LOWER FEDERAL COURTS APPEAR RELUCTANT TO APPLY IT BECAUSE OF THE HIGH LEVEL OF MISCONDUCT THAT, ACCORDING TO HAMPTON, DUE PROCESS WILL TOLERATE. LATER COURT CASES, USING THE SAME PRECEDENT, HAVE HAD CONFLICTING RESULTS, ILLUSTRATING THE SUBJECTIVE CHARACTER OF THE DUE PROCESS APPROACH AND A RELUCTANCE TO APPLY STANDARDS (PEOPLE V. ISAACSON, PEOPLE V. ARCHER, PEOPLE V. RAO). SEVERAL SUPREME COURT JUSTICES HAVE BACKED A MORE OBJECTIVE APPROACH, BASING DEFENSE ON SOUND PUBLIC POLICY PRINCIPLES AND THE SUPERVISORY POWERS OF THE COURT OVER THE ADMINISTRATION OF THE CRIMINAL JUSTICE SYSTEM. A DEFENDANT'S PREDISPOSITION TO CRIME IS IMMATERIAL UNDER THIS APPROACH. ADOPTION OF THE OBJECTIVE APPROACH WOULD END THE OPEN SEASON ON PAST OFFENDERS AND PREDISPOSED INDIVIDUALS AND WOULD RAISE RECOGNITION OF THESE INDIVIDUALS' LEGAL RIGHTS TO THE LEVEL OF THOSE WHO HAVE NOT BEEN BRANDED 'PREDISPOSED.' FOOTNOTES ARE INCLUDED.
Index Term(s): Entrapment; Policy; Rights of the accused
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http://www.ncjrs.gov/App/publications/abstract.aspx?ID=69229

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