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Entrapment - Due Process

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The due process clause of the Fourteenth Amendment of the U.S. Constitution sets forth a minimal standard for government behavior in the criminal justice system. The clause has been used in a variety of contexts involving the investigation and prosecution of crime. In the most prominent case, Rochin v. California, the Supreme Court used the due process analysis to invalidate a search and seizure in which police officers required the defendant to undergo a medical stomach-pump procedure. The Court concluded that such a requirement was an affront to even the most rigid supporters of police force. Even though strong evidence of crime was found, the evidence was excluded from trial because of the improper actions of the police.

Many lawyers have argued forcefully that such due process considerations must be used in the entrapment setting as well. If the government involvement is too great or intense, the defendant's conviction would need to be set aside, wholly apart from the application of the entrapment defense. This situation arises where the government action was extreme, but the defendant was also predisposed to commit the crime.

Not all believe that the due process analysis should apply in the entrapment context, where the focus is not on shocking behavior, but rather on over-involvement by law enforcement. Some judges question whether any sort of principled determination could be brought to bear on the numerous fact patterns present in this setting. Most judges, however, believe that the constitutional basis for the due process analysis would require its application in those relatively few cases involving clearly unacceptable government conduct. The Supreme Court has never reached a decision based upon due process considerations in the entrapment area, though several of the Justices have referred to the claim as one that could be raised in the appropriate case.

The leading federal opinion using the due process analysis, United States v. Twigg, involved government agents fully immersed in establishing and operating a drug laboratory; in addition, they strongly encouraged the criminal behavior of the defendants. The federal circuit judges reversed the defendants' drug convictions, noting that such convictions would violate "fundamental fairness" because the government agents had truly been the lead figures in the criminal enterprise. State judges, too, apply the due process analysis, though more often under state—rather than federal—constitutional principles. When a finding of "egregious police conduct" has been made, judges in a number of states have applied their own constitutional standards to invalidate the underlying criminal convictions.

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