NCJ Number
98192
Journal
University of Miami Law Review Volume: 39 Issue: 1 Dated: (November 1984) Pages: 131-155
Date Published
1984
Length
25 pages
Annotation
A review of Supreme Court and other courts' decisions on reverse stings and entrapment concludes that use by the Government of reverse stings, confidential informants, or other special investigative techniques gives rise neither to the entrapment defense nor to any Government misconduct defense.
Abstract
Courts have approved investigative tools such as reverse stings and confidential informants as necessary to combat drug-related crime, but they also have struggled to map certain limits to such practices. Williamson v. United States (1965) is the jurisdictional fountainhead of reverse stings. While Williamson refused to sanction a contingent fee arrangement with an informer to produce evidence, it failed to provide clear guidelines on what conduct was specifically forbidden. Courts have agreed that a contingent fee arrangement alone is not enough to warrant dismissal of a case. The result in Williamson is often explained instead on the basis of Government agents targeting the defendants, but the Supreme Court and other courts generally have sanctioned targeting as an investigative technique. Finally, if Williamson stands for nothing more than a fairly minor point of evidentiary procedure, then it ill-serves the legal community. At this point, the Williamson line of cases produces precarious standards involving the interrelationship of contingent fee arrangements, targeting, and prior suspicion. Had the decision in United States v. Russell (1973) antedated Williamson, courts might have been spared much confusion. Prior to Russell, there were two theories of entrapment: subjective entrapment was based on the defendant's state of mind, and objective entrapment which focuses on the Government's conduct. In Russell, the Supreme Court held that a defendant's subjective predisposition to crime voids the entrapment defense. The Court, in Russell, however, did say that one day it might be presented with a situation where the conduct of law enforcement agents was so outrageous that due process principles would bar prosecution. Following a discussion of relevant cases decided by the Florida Supreme Court and other State courts, the paper contends that a defendant in a reverse sting has the entire panoply of constitutional protections, but not a general due process right to be free from flagrant Government conduct. The paper includes 140 footnotes.