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Hastings Constitutional Law Quarterly

Authors

Eve A. Zelinger

Abstract

The U.S. Supreme Court has held that the Due Process Clause protects defendants from Outrageous Government Conduct (“OGC”) via the OGC defense, but the Court has not yet been presented with a set of facts it believes warrants its application. As a result, the Court has not set forth such criteria for application of the OGC defense, leaving the lower courts to apply their own standards. While some critics contend there is no use for the OGC defense due to the availability of the entrapment defense, this Note will uncover why this is not the case. More specifically, this Note will (i) advocate for the application of the OGC defense to appropriate facts and circumstances, (ii) outline the facts and circumstances where the lower federal, as well as state, courts have applied the OGC defense, and (iii) argue for the Supreme Court’s clarification of standards to guide lower courts’ application of the facts and circumstances that constitute OGC, i.e., where law enforcement action rises to the level of a violation of Fifth Amendment Due Process protection.

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