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F 4.015 n1 Outrageous Government Misconduct: Due Process Doctrine.
While the test for entrapment in California is objective and focuses on the conduct of law enforcement (People v. Barraza (79) 23 C3d 675, 689-690), the California Supreme Court, like the high court, has left open the possibility that it might accept the outrageous conduct defense. (See also People v. Smith (2003) 31 C4th 1207, 1224 [discussing but not deciding whether outrageous conduct is applicable in California].) In People v. McIntire (79) 23 C3d 742, in the course of rejecting the prosecution claim that entrapment cannot be effected through an unwitting agent, an argument that would have permitted unconscionable law enforcement activity so long as the target of entrapping agents was not reached directly but indirectly through the use of unsuspecting dupes, we observed: “Sufficiently gross police misconduct could conceivably lead to a finding that conviction of the accused would violate his constitutional right to due process of the law.” [Citations.] (McIntire, at p. 748, fn. 1 [dicta]; see Smith, 31 C4th at 1225, n. 4.)
Difference Between Entrapment And Outrageous Conduct Defenses: The potentially important differences between the doctrines of entrapment and outrageous law enforcement conduct were explained by the dissenting opinion of Werdegar, J., George, C.J., and Kennard, J., as follows:
The due process “defense” of outrageous law enforcement conduct is actually a bar to prosecution rather than a defense to the charge; as such, it is properly raised by motion and decided by the court. (People v. Wesley (90) 224 CA3d 1130, 1138; see also People v. Thoi (89) 213 CA3d 689, 695-697, fns. 2 & 4.) In contrast, entrapment is a defense to the charge and is decided by jury trial. (People v. Barraza (79) 23 C3d 675, 691, fn. 6; People v. Thoi, supra, at p. 693.) The constitutional bar of outrageous law enforcement conduct, moreover, may be invoked against police or prosecutorial conduct that does not involve inducement to crime and therefore cannot serve as the basis for an entrapment defense. (People v. Holloway (96) 47 CA4th 1757, 1767; People v. Thoi, supra, at p. 696, fn. 3.)
The two doctrines are therefore distinct both substantively and procedurally. They do overlap substantively in a particular factual context, i.e., “[i]n cases where the thrust of the defense is that the government improperly instigated the crime.” (People v. Thoi, supra, 213 Cal. App. 3d at p. 696.) But that an area of overlap exists does not make either doctrine redundant and provides no reason to doubt that in a proper case of outrageous conduct, whether or not including government inducement to crime, the defendant may be able to obtain dismissal of the action on due process grounds. [Emphasis in original.] (People v. Smith (2003) 31 C4th 1207,1228-29.)
The due process doctrine of outrageous prosecution misconduct is used to bar prosecution based upon the improper conduct of the government. It is to be distinguished from dismissals based upon the court’s inherent supervisory power. (See distinction noted in U.S. v. Simpson (9th Cir. 1987) 813 F2d 1462, fn 2.) Due process of law requires that governmental officials no less than private citizens follow the rules of law. (See Yellin v. U.S. (63) 374 US 109, 114-24 [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].) “Outrageous prosecution misconduct would, according to then Justice Rehnquist in U.S. v. Russell (73) 411 US 423, 431-32 [36 LEd2d 366], “absolutely bar the Government from invoking judicial processes.” (See also People v. Peppars (83) 140 CA3d 677, 685-86 [189 CR 879] discussing People v. McIntire (79) 23 C3d 742, 748, fn 1 [153 CR 237].) Even in entrapment cases, the outrageous police conduct defense is available in California. (People v. Holloway (96) 47 CA4th 1757, 1767 [55 CR2d 547] [disagreeing with People v Thoi (89) 213 CA3d 689 [261 CR 789]].)
The defense has been recognized and applied by many federal 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; Greene v. U.S. (9th Cir. 1971) 454 F2d 783, 787; U.S. v. Prairie (9th Cir. 1978) 572 F2d 1316, 1319; U.S. v. Mulherin (11th Cir. 1983) 710 F2d 731, 735-36.) In the federal courts, the defense is distinct from that of entrapment. While entrapment presents a question of fact, this defense presents a question of law. (U.S. v. McQuin (9th Cir. 1980) 612 F2d 1193, 1196; see also U.S. v. Bogart (9th Cir. 1986) 783 F2d 1428, 1436-37.)
F 4.015 n2 Outrageous Government Misconduct: Outrageous Prosecutorial Misconduct.
See Boulas v. Superior Court (86) 188 CA3d 422 [233 CR 487].
F 4.015 n3 Outrageous Government Misconduct: Not Available Vicariously.
People v. Holloway (96) 47 CA4th 1757, 1767 [55 CR2d 547] held that neither the entrapment nor the outrageous police conduct defense may be asserted vicariously.