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THE FUNDAMENTAL FAIRNESS DOCTRINE
IN AMERICAN CASE LAW,
IS IT STILL VIABLE?

One of my law professors once said that if you did not have definitive authority on the point of law you were trying to make, you should pile up what you have as high as it will go, and then take a running jump at it. This is a running jump at the Fundamental Fairness Doctrine.

In 1952 the United States Supreme Court said, in Rochin v. The People of California, that a court must ascertain whether or not government actions "offend those canons of decency and fairness which express the notions of justice of English speaking peoples" even when dealing with defendants charged with the most heinous offenses. The case involved a defendant charged with drug possession. He had disposed of the evidence by swallowing it and the government retrieved it by forcibly pumping his stomach. Mr. Justice Frankfurter considered the stomach pumping to be so offensive as to violate the due process clause of the Fourteenth Amendment. Mr. Rochin's conviction was overturned. I personally do not consider the stomach pumping unreasonable under the circumstances, but the Supreme Court did.

In 1932 fundamental fairness was the basis of the Supreme Court's entrapment doctrine. It was the era of Prohibition and a revenue agent posing as a tourist asked the defendant if he could get him some whiskey. The defendant refused. The agent continued to engage the defendant in conversation, several more times asking for liquor and each time being refused. Finally the agent began to talk about World War I. Both the agent and the defendant had served in the same unit, and the agent again asked for whiskey for an old comrade in arms. Finally the defendant said he would try, went away for a while, and returned with whiskey; whereupon he was arrested, tried, and convicted. In overturning the conviction, Mr. Justice Roberts said that "courts must be closed to the trial of a crime instigated by the government's own agents."

I am no fan of fuzzy legal principles made of whole cloth, but the Fundamental Fairness Doctrine does seem to have some merit in some cases. I will now give you a hypothetical case and let you decide whether or not fundamental fairness is involved, and how it should affect the case. The hypothetical is not on all fours with either of the cases cited above, or with any other in which the doctrine has been applied, but it is the sort of case where it might be applied if one could make a successful running jump at it.

Suppose

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