Entrapment, Shocked Consciences, and the Staged Arrest

• NCJ Number: 82956
• Journal: Minnesota Law Review Volume: 66 Issue: 4 Dated: (April 1982) Pages: 567-638
• Author(s): B L Gershman
• Date Published: 1982
• Length: 72 pages
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

This article discusses case law relating to staged arrest, the defense of entrapment, due process clause considerations, and possible safeguards against Government abuse of power in undercover investigations.

Abstract

In United States v. Archer (1973) and Nigrone v. Murtagh (1974), the courts failed to examine the necessity for the procedure of staged arrest and whether alternative techniques were available to gather evidence of corruption in the court system. The legal doctrine of entrapment is tied to the concept of staged arrest, and it, too, remains controversial. The courts have consistently recognized that it is permissible for Government officials to contrive traps and to deception to obtain evidence of a crime. However, entrapment becomes unlawful and constitutes a defense when officials entice innocent persons into crime. Although defendants frequently assert entrapment as a defense in prosecutions resulting from undercover police activity, the defense is rarely sustained. Thus, the defense of entrapment, as traditionally formulated, apparently offers very little assistance to a defendant ensnared in a staged arrest. Examination of the use of due process in undercover investigations reveals that courts generally will not hesitate to find a due process violation arising from a prosecutor's undercover activities. Unfortunately, courts have also adopted the substantive due process test, which provides only a vague description of possible violations. Due process requires the Government to prove its good faith, the legitimacy of the operation, and necessity for the operation; the Government's participation in criminal activity, nature of the solicitation, and harm to society are also relevant factors in determining possible abuse by the Government. The article suggests that requirement of a warrant for the staged arrest would provide the most effective restraint on investigative excesses. The article provides 412 footnotes.