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37 Conn. L. Rev. 67 (2004-2005)
Entrapment and the Problem of Deterring Police Misconduct

handle is hein.journals/conlr37 and id is 85 raw text is: Entrapment and the Problem of Deterring
Police Misconduct
Many of the states currently use a version of the entrap-
ment defense known as the objective test,  which focuses
solely on the extent of police overreaching in the case, and
seeks to deter police misconduct by acquitting the defendant.
Acquitting defendants as a means of deterring undercover
police misconduct, however, is a public policy fraught with
problems, and these problems have not been adequately ad-
dressed in the literature to date. This article applies the in-
sights of modem deterrence theory to wrongful activity by
police in undercover operations. In doing so, three general
problems emerge. First, the objective test relies on an indi-
rect or inverted form of deterrence, where the wrongdoer's
punishment consists entirely of a benefit or windfall con-
ferred on a third party, the defendant. It is uncertain how
such indirect deterrence factors into the decision-making
process of police. Second, the objective test breaks down at
the individual level. Individual officers may be pursuing less
noble ends than the ultimate conviction of an arrestee, in
which case the intended deterrence is inoperative. Third,
and most significant, entrapment is not a constitutional de-
fense, unlike the exclusionary rules, and therefore does not
trigger the 'fruit of the poisonous tree doctrine; this allows
even conscientious police to risk a successful entrapment de-
fense being raised by the accused, if there is the potential for
Visiting Scholar, Yale Law School, Summer 2004; Asst. Prof. of Law, South Texas College of
Law (Houston, TX). Special thanks to Joshua Dressier, Paul Marcus, Chris Slobogin, Roger Park, Dan
Richman, Peter Siegelman, Neal Katyal, Alon Harel, Kevin Yamamoto, and Tim Zinnecker, for their
helpful comments, corrections, and suggestions. Two student research assistants, Billy Skinner and
Zahra Jivani, deserve credit for their help on this project and forthcoming work on entrapment. Any
mistakes or errors are the author's.

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