NCJ Number
61236
Journal
Journal of Criminal Law and Criminology Volume: 67 Issue: 2 Dated: (JUNE 1976) Pages: 181-194
Date Published
1976
Length
14 pages
Annotation
THIS ARTICLE CONSIDERS THE QUESTION OF WHETHER RIGHTS OF DEFENDANTS TO DUE PROCESS ARE INFRINGED UPON WHEN THEY ARE ABDUCTED AND FORCIBLY REMOVED TO A JURISDICTION WHOSE LAW THEY HAVE ALLEGEDLY VIOLATED.
Abstract
STATE AND FEDERAL COURTS HAVE LONG SANCTIONED A UNIQUE FORM OF LAWLESSNESS BY ASSUMING JURISDICTION OVER THE PERSON OF A CIRMINAL DEFENDANT WHOM LAW ENFORCEMENT OFFICIALS HAVE ILLEGALLY APPREHENDED AND FORCIBLY BROUGHT INTO THEIR JURISDICTION. COURTS HAVE EXHIBITED AN ALMOST UNIVERSAL ADHERENCE TO A DOCTRINE MAINTAINING THAT THE POWER OF GOVERNMENT TO PROSECUTE A DEFENDANT IS NOT IMPAIRED BY THE ILLEGALITY OF THE METHOD USED TO ACQUIRE JURISDICTION OVER THAT DEFENDANT. THIS DOCTRINE HAS COME TO BE KNOWN AS THE KER-FRISBIE RULE AND HAS BEEN THE SUBJECT OF MUCH CRITICISM. IT WAS SHARPLY ATTACKED IN THE UNITED STATES VERSUS TOSCANINO CASE WHERE THE COURT FOUND THAT THE KER-FRISBIE RULE NO LONGER COMPORTED WITH CONTEMPORARY CONCEPTS OF DUE PROCESS. OTHER COURTS HAVE BEEN UNWILLING TO FOLLOW THIS LEAD, HOWEVER, AND HAVE CONTINUED TO HOLD THAT THEY WILL NOT INQUIRE AS TO THE MANNER IN WHICH A DEFENDANT IS BROUGHT INTO THEIR JURISDICTION. BY ANALYZING THE TECHNIQUE OF ABDUCTION, THE TOSCANINO CASE, AND RELATED JUDICIAL DECISIONS, IT IS DEMONSTRATED THAT THE KER-FRISBIE DOCTRINE INFRINGES UPON DUE PROCESS RIGHTS OF DEFENDANTS. BECAUSE THE CONCEPT OF DUE PROCESS IS BROAD AND REQUIRES THAT ACCUSED PERSONS BE PROTECTED AGAINST PRETRIAL ILLEGALITIES, ABDUCTION AND FORCIBLE REMOVAL ARE BLATANT ACTS OF LAWLESSNESS WHEN LEGAL MEANS ARE AVAILABLE FOR EXTRADITION OR TRANSFER. CASE LAW IS REVIEWED. (DEP)