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 VOLUME 11 - CHAPTER 257
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257.8 Outrageous Government Misconduct

    257.8.1 Outrageous Government Misconduct: Entrapment Distinguished
    257.8.2 Outrageous Government Misconduct: Not Available Vicariously

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PRACTICE NOTE: The due process doctrine of outrageous prosecution misconduct, which is analogous to but different from entrapment, is used to bar prosecution based upon the improper conduct of the government. (See e.g., U.S. v. Cuervelo (2nd Cir. 1991) 949 F2d 559, 565 [defendant who unsuccessfully advances entrapment defense before trier of fact may succeed in mounting successful due process attack on indictment based upon showing governmental conduct to be outrageous]; U.S. v. Cannon (8th Cir. 1996) 88 F3d 1495, 1506 [defense of outrageous government conduct is similar to, though distinct from, defense of entrapment]; U.S. v. Simone (D. N.J. 1986) 627 FSupp 1264, 1268 [entrapment is limited to its statutory elements while outrageous government conduct may invoke constitutional principles of due process]; U.S. v. Bartels (D. Vt.) 983 FSupp 507, 511 [Due Process Clause violated when Government officials engage in outrageous conduct; such conduct must be offensive to fundamental fairness, shocking to universal sense of justice].)

    When the government has engaged in conduct that is extremely outrageous, the government may be precluded from pursuing criminal convictions against those who have been thereby victimized as a matter of fundamental fairness. (See Cook and Hermann, Criminal Defense Checklist (West, 1998 ed.) § 4.02(1), p. 217.) Ordinarily such official misconduct must involve either coercion (Watts v. Indiana (1949) 338 US 49, 55 [69 SCt 1347; 93 LEd 1801] [six days of intense interrogation of accused]), or violation of the defendant's person (Rochin v. California (1952) 342 US 165, 172 [72 SCt 205; 96 LEd 183] [forcible extraction of accused's stomach contents].)

    The basis for this defense is the notion that due process requires governmental officials to follow the rules of law no less than private citizens. (See Yellin v. U.S. (1963) 374 US 109, 114-24 [83 SCt 1828; 10 LEd2d 778] [reversing a criminal contempt of a person who refused to testify before congressional subcommittee which did not follow its own rules by permitting the witness to testify in executive session]; cf. Boulas v. Superior Court (CA 1986) 188 CA3d 422, 429 [233 CR 487] [outrageous government conduct].)

    When such misconduct is committed by the prosecution the government is barred from invoking judicial processes. (See U.S. v. Russell (1973) 411 US 423, 431-32 [93 SCt 1637; 36 LEd2d 366]; see also People v. Peppars (CA 1983) 140 CA3d 677, 685-86 [189 CR 879] [discussing People v. McIntire (CA 1979) 23 C3d 742, 748, fn 1 [153 CR 237]]; State v. Williams (FL 1993) 623 So2d 462, 465 ["While we must not tie law enforcement's hands in combating crime, there are instances where law enforcement's conduct cannot be countenanced and the courts will not permit the government to invoke the judicial process to obtain a conviction." [Citation]].)

    The defense has been recognized and applied by many federal appellate courts. (See e.g., U.S. v. Twigg (3d Cir. 1978) 588 F2d 373, 379-81; U.S. v. West (3d Cir. 1975) 511 F2d 1083, 1085; U.S. v. Bueno (5th Cir. 1971) 447 F2d 903, 905; U.S. v. Cannon (8th Cir. 1996) 88 F3d 1495, 1506; U.S. v. Prairie (9th Cir. 1978) 572 F2d 1316, 1318; Greene v. U.S. (9th Cir. 1971) 454 F2d 783, 787; U.S. v. Mulherin (11th Cir. 1983) 710 F2d 731, 735-36.) In the federal courts, the defense is distinct from that of entrapment. (U.S. v. Prairie (9th Cir. 1978) 572 F2d 1316, 1318-19.)

    While entrapment presents a question of fact, "outrageous government conduct" presents a question of law. (U.S. v. McQuin (9th Cir. 1980) 612 F2d 1193, 1196.)

    However, even in entrapment cases, the outrageous police conduct defense may be available. (See e.g., People v. Holloway (CA 1996) 47 CA4th 1757, 1767 [55 CR2d 547] [disagreeing with People v Thoi (CA 1989) 213 CA3d 689 [261 CR 789]]; see also Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(E) [Mistake/Accident] p. 322 (South Carolina CLE, 1994).)

RESEARCH NOTES:

See generally, FORECITE National™ 305.15.2 [Outrageous Prosecution Misconduct].

FORECITE National™
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 VOLUME 11 - CHAPTER 257

PRACTICE NOTE: People v. Holloway (CA 1996) 47 CA4th 1757, 1767 [55 CR2d 547] held that neither entrapment nor the outrageous police conduct defense may be asserted vicariously.

RESEARCH NOTES:

See generally, FORECITE National™ 305.15.2 [Outrageous Prosecution Misconduct].