CRIMINAL PROCEDURE - ARREST - CONSTITUTIONAL LAW ILLEGAL ABDUCTION OF DEFENDANT IS NOT SHOCKING GOVERNMENTAL CONDUCT WHICH DIVESTS FEDERAL COURT OF JURISDICTION. LUJAN V GENGLER... (2D CIR. 1975).

• NCJ Number: 29787
• Journal: University of Cincinnati Law Review Volume: 44 Issue: 2 Dated: (1975) Pages: 340-349
• Author(s): A R VOEGTLEN
• Date Published: 1975
• Length: 10 pages
• Corporate Author: University of Cincinnati Law Review
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE SECOND CIRCUIT COURT OF APPEALS HELD THAT THE FACT THAT A DEFENDANT IS BROUGHT TO TRIAL BY ILLEGAL MEANS DOES NOT REQUIRE DIVESTITURE OF JURISDICTION UNLESS THE GOVERNMENT'S CONDUCT IS OUTRAGEOUS.

Abstract

THE AUTHOR NOTES THAT THIS HOLDING SUBSTANTIALLY FOLLOWED THE KER-FRISBLE DOCTRINE THAT AN ILLEGAL ARREST DOES NOT BAR SUBSEQUENT PROSECUTION OF THE DEFENDANT, AND CITES OTHER PERTINENT CASE LAW IN THIS AREA. IN EVALUATING THE COURT'S REFUSAL TO ADOPT TOTAL IMMUNITY FROM PROSECUTION, SHE EXAMINES THE GOALS SOUGHT TO BE ACHIEVED IN THE GROWTH OF DUE PROCESS, THE COSTS AND BENEFITS OF THE EXCLUSIONARY RULE, AND THEIR APPLICATION TO THE PROBLEMS OF ILLEGAL ARRESTS. THE AUTHOR CONCLUDES THAT THERE ARE REASONED ARGUMENTS THAT EXCLUSION WOULD NOT BE THE BEST MEANS OF PROTECTING CONSTITUTIONAL RIGHTS IN THIS AREA. SEVERAL ALTERNATIVES TO THE EXCLUSIONARY RULE WHICH MAY BE APPLICABLE TO ILLEGAL ARRESTS ARE SUGGESTED. THEY INCLUDE A MODIFIED TORT REMEDY TO PROVIDE PERSONAL INCENTIVE TO OBEY CONSTITUTIONAL RESTRICTIONS; USE OF THE SUBSTANTIAL VIOLATION TEST TO IMMUNIZE A DEFENDANT ONLY WHERE A SUFFICIENTLY SERIOUS INFRINGEMENT OF RIGHTS HAD OCCURRED; AND HAVING THE COURT, OF ITS OWN AUTHORITY, REFUSE TO EXERCISE JURISDICTION OVER A DEFENDANT ILLEGALLY BROUGHT BEFORE IT. ALSO SUGGESTED WERE HAVING THE FEDERAL APPELLATE COURTS ALSO COULD USE THEIR SUPERVISORY POWER OVER DISTRICT COURTS TO CIRCUMVENT KER-FRISBIE RULE AND IMPOSE HIGHER STANDARDS OF GOVERNMENTAL CONDUCT, AND THE IMPLEMENTATION OF JUDICIALLY REQUIRED RULEMAKING, WHEREBY POLICE SUPERVISORS WOULD ESTABLISH STANDARDS GOVERNING ARREST PROCEDURES, SUBJECT TO JUDICIAL APPROVAL. THE AUTHOR CONCLUDES THAT THE LUJAN COURTS REFUSAL TO DIVEST ITSELF OF JURISDICTION OVER ILLEGALLY SEIZED DEFENDANTS VIOLATES THE CONCEPTS OF DUE PROCESS AND JUDICIAL INTEGRITY, AND THAT PERTINENT CASE LAW PROVIDES NO BASIS FOR THE COURTS DISTINCTIONS BETWEEN 'SHOCKING' AND ACCEPTABLE GOVERNMENTAL ILLEGALITY. HE SUGGESTS THAT EFFECTIVE TORT REMEDIES COMBINED WITH SOME RULE MAKING WOULD PROVIDE CLARITY, STRONG INCENTIVE FOR COMPLIANCE, AND GREAT PERSUASIVE FORCE FOR THE LAW ENFORCEMENT COMMUNITY.