NCJ Number
13499
Journal
Brooklyn Law Review Volume: 40 Issue: 3 Dated: (WINTER 1974) Pages: 802-816
Date Published
1974
Length
15 pages
Annotation
REVIEW OF THE HISTORICAL DEVELOPMENT OF THE DEFENSE OF ENTRAPMENT, WITH EMPHASIS ON GUIDANCE BY THE SUPREME COURT, AND LOWER COURTS' RELUCTANCE TO FOLLOW THAT LEAD.
Abstract
IN TWO LANDMARK CASES IN THE AREA OF THE ENTRAPMENT DEFENSE, SORRELLS V. UNITED STATES AND SHERMAN V. UNITED STATES, THE SUPREME COURT HELD THE DEFENSE APPLICABLE ONLY TO THOSE PERSONS WHO WERE 'OTHERWISE INNOCENT,' OR, THOSE DEFENDANTS WHO HAD NOT BEEN PREDISPOSED TO COMMIT THE CRIME. CONCURRING OPINIONS IN BOTH DECISIONS, HOWEVER, SHIFTED THIS EMPHASIS FROM THE DEFENDANT'S PREDISPOSITION TO THE POLICE CONDUCT INVOLVED. THE MINORITY BELIEVED THAT THE DEFENSE EXISTS SO THAT THE COURTS MIGHT PROTECT AND PRESERVE THE INTEGRITY OF THEIR PROCESSES. THIS DIVERGENCE OF OPINION HAS BEEN THE OBJECT OF DISCUSSION OF LEGAL WRITERS AND MANY LOWER COURTS HAVE REFUSED TO FOLLOW THE DIRECTION OF THE MAJORITY OPINIONS. THESE COURTS EITHER DECIDED THE QUESTIONS ON THE BASIS OF THE POLICE CONDUCT AS THE MINORITY SUGGESTED, OR FORMULATED THEIR OWN TESTS. IN A 1973 DECISION, UNITED STATES V. RUSSELL, THE SUPREME COURT AFFIRMED ITS EARLIER 'PREDISPOSITION' HOLDINGS OF SORRELLS AND SHERMAN. THE AUTHOR ATTACKS THIS HOLDING AS UNREASONABLE, AND SUGGESTS THAT LOWER COURTS WILL CONTINUE TO LOOK AT THE POLICE CONDUCT INVOLVED. HE PREDICTS THAT IN FUTURE CASES, COURTS MAY ANALYZE FACTUAL SITUATIONS IN THE LIGHT OF DUE PROCESS REQUIREMENTS, RATHER THAN ON THE BASIS OF SUPREME COURT TESTS AS ENUNCIATED IN THE SORRELLS, SHERMAN, AND RUSSELL DECISIONS. IN CONCLUSION, HE SUGGESTS THAT THE APPLICATION OF THE DEFENSE OF ENTRAPMENT MAY REQUIRE A STATUTORY BASIS PRESCRIBED BY THE STATE AND NATIONAL LEGISLATURES IN ORDER TO ACHIEVE ANY SEMBLANCE OF UNIFORMITY. TO ILLUSTRATE, MODEL PENAL CODE, AND THE CRIMINAL JUSTICE RECODIFICATION, REVISION, AND REFORM ACT OF 1973 PROVISIONS ON ENTRAPMENT ARE INCLUDED.