SERIES 3300 NON-CALCRIM DEFENSES
F 3302 Misconduct Of Prosecution Or Police
TABLE OF CONTENTS
F 3302 Note 1 Outrageous Government Misconduct: Due Process Doctrine
F 3302 Note 2 Outrageous Government Misconduct: Outrageous Prosecutorial Misconduct
F 3302 Note 3 Outrageous Government Misconduct: Not Available Vicariously
F 3302 Note 4 Inconsistent Prosecution Theories
Return to Series 3300 Table of Contents.
F 3302 Note 1 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 (1979) 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 (1979) 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 (1990) 224 CA3d 1130, 1138; see also People v. Thoi (1989) 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 (1979) 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 (1996) 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. (1963) 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 (1973) 411 US 423, 431-32, “absolutely bar the Government from invoking judicial processes.” (See also People v. Peppars (1983) 140 CA3d 677, 685-86 discussing People v. McIntire (1979) 23 C3d 742, 748, fn 1.) Even in entrapment cases, the outrageous police conduct defense is available in California. (People v. Holloway (1996) 47 CA4th 1757, 1767 [disagreeing with People v Thoi (1989) 213 CA3d 689].)
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.)
CALJIC NOTE: See FORECITE F 4.015 n1.
F 3302 Note 2 Outrageous Government Misconduct: Outrageous Prosecutorial Misconduct
See Boulas v. Superior Court (1986) 188 CA3d 422.
CALJIC NOTE: See FORECITE F 4.015 n2.
F 3302 Note 3 Outrageous Government Misconduct: Not Available Vicariously
People v. Holloway (1996) 47 CA4th 1757, 1767 held that neither the entrapment nor the outrageous police conduct defense may be asserted vicariously.
CALJIC NOTE: See FORECITE F 4.015 n3.
F 3302 Note 4Inconsistent Prosecution Theories
“[F]undamental fairness does not permit the People, without a good faith justification, to attribute to two defendants, in separate trials, a criminal act only one defendant could have committed. By doing so, the state necessarily urges conviction or an increase in culpability in one of the cases on a false factual basis, a result inconsistent with the goal of the criminal trial as a search for truth. At least where … the change in theories between the two trials is achieved partly through deliberate manipulation of the evidence put before the jury, the use of such inconsistent and irreconcilable theories impermissibly undermines the reliability of the convictions or sentences thereby obtained. In short, in the absence of a good faith justification, ‘[c]ausing two defendants to be sentenced to death by presenting inconsistent arguments in separate proceedings … undermines the fairness of the judicial process and may precipitate inappropriate results.’ [Citation.]” (In re Sakarias (2005) 35 C4th 140, 155-56; see also Thompson v. Calderon (9th Cir. 1997) 120 F3d 1045.)
“Because it undermines the reliability of the convictions or sentences, the prosecution’s use of inconsistent and irreconcilable theories has also been criticized as inconsistent with the principles of public prosecution and the integrity of the criminal trial system.” (Sakarias, 35 C4th at 159.) A criminal prosecutor’s function is not merely to prosecute crimes, but also to make certain that the truth is honored to the fullest extent possible during the course of the criminal prosecution and trial. (United States v. Kattar (1st Cir. 1988) 840 F2d 118, 127.) His or her goal must be “not simply to obtain a conviction, but to obtain a fair conviction.” (Brown v. Borg (9th Cir. 1991) 951 F2d 1011, 1015, italics omitted.) Although the prosecutor must prosecute with earnestness and vigor and may strike hard blows, he is not at liberty to strike foul ones. (Smith v. Groose (8th Cir. 2000) 205 F3d 1045, 1049, quoting Berger v. United States (1935) 295 US 78, 88 [79 LEd 1314; 55 SCt 629]; see also ABA Model Code Prof. Responsibility, EC 7-13 [The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict].)
CALJIC NOTE: See FORECITE F 4.006b.