NCJ Number
30045
Journal
Maryland Law Review Volume: 35 Issue: 1 Dated: (1975) Pages: 147-173
Date Published
1975
Length
27 pages
Annotation
THE KER-FRISBIE RULE, ESTABLISHED BY A 1886 SUPREME COURT DECISION AND REASSERTED IN 1952, STATES THAT THE JURISDICTION OF A COURT TO TRY A CRIMINAL DEFENDANT IS NOT AFFECTED BY THE MANNER OF SEIZURE.
Abstract
THIS NOTE EXPLORES THE EROSION OF THIS RULE DUE TO THE CHANGING NOTIONS OF DUE PROCESS OF LAW, BOTH IN THE STATE AND FEDERAL COURTS. THE LINE OF CASES ESTABLISHING THE KER-FRISBIE RULE ARE DISCUSSED AND JUSTIFICATIONS FOR AND ATTACKS AGAINST THE RULE ARE EXAMINED. HIGHLIGHTED ARE THE SECOND CIRCUIT COURT RULINGS IN UNITED STATES V. TOSCANINO (1974) AND UNITED STATES EX REL. LUJAN V. GENGLER (1975). IN THESE CASES, THE COURT HELD THAT A COURT SHOULD NOT EXERCISE JURISDICTION OVER A DEFENDANT WHEN HIS PRESENCE WAS ACQUIRED THROUGH KIDNAPPING AND ABDUCTION COUPLED WITH TORTURE. LUJAN, HOWEVER, DISTINGUISHED BETWEEN AN ABDUCTION WHICH IS SIMPLY ILLEGAL AND ONE WHICH VIOLATES CONSTITUTIONAL DUE PROCESS. THE KER-FRISBIE RULE IS ALSO DISCUSSED IN RELATION TO THE 1961 SUPREME COURT DECISION IN MAPP V. OHIO MAKING THE EXCLUSIONARY RULE APPLICABLE TO THE STATES. THE AUTHOR THEN CONSIDERS APPROPRIATE REMEDIES FOR A DUE PROCESS VIOLATION RELATING TO AN ILLEGAL ABDUCTION, INCLUDING DIVESTMENT OF JURISDICTION OVER THE ILLEGALLY ABDUCTED PERSON, COMPLETE DEFENDANT IMMUNITY FROM PROSECUTION, AND THE APPLICATION OF THE EXCLUSIONARY RULE. HE CONCLUDES THAT SPARING USE OF DIVESTMENT OF JURISDICTION IS THE ONLY POSSIBLE REMEDY. ANOTHER ISSUE CONSIDERED IS WHETHER VIOLATION OF INTERNATIONAL TREATIES CAN BE INVOKED AS AN ALTERNATIVE MEANS TO DIVEST THE COURT OF JURISDICTION (A TACTIC TRIED IN BOTH TOSCANINO AND LUJAN. THE AUTHOR MAINTAINS THAT, IN THE ABSENCE OF A DEMAND BY THE INJURED STATES FOR THE REDRESS OF THE ASSERTED VIOLATION OF TREATIES, THE COURT IN LUJAN WAS CORRECT IN HOLDING THAT THE DEFENDANT HAD NO STANDING TO PROTEST HIS ABDUCTION BASED ON ANY VIOLATION OF INTERNATIONAL CHARTERS. HOWEVER, HE ALSO QUESTIONS THE LUJAN HOLDING THAT THE GOVERNMENT MAY KIDNAP AND FORCIBLY ABDUCT A DEFENDANT TO ACQUIRE JURISDICTION OVER HIM SO LONG AS THEY ARE NOT 'TOO ROUGH' IN ACCOMPLISHING THEIR GOAL. HE SUGGESTS THAT A PARTIAL REMEDY TO THIS SITUATION WOULD BE TO DECLARE THAT AN INTERNATIONAL ABDUCTION, PROPERLY ASSERTED SO AS TO AMOUNT TO A VIOLATION OF INTERNATIONAL LAW, WOULD BE SUFFICIENT TO DIVEST THE COURT OF JURISDICTION.