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
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 it is Friday night and your wife has
not come home from visiting a friend. You go to bed. On Saturday
morning you wake up to discover that she is still not home. When
you call your wife’s friend you are told that she left there
in the early afternoon. Now you begin to worry. Phone calls to
people she knows yield no information. By afternoon you are thinking
of calling the police, but before you get around to it they show
up at your door and begin to ask questions about your wife’s
whereabouts. Your mother-in-law, on hearing that her daughter
was missing called the police and informed them that you and your
wife had been having some rather nasty fights lately. It does
not take too many police questions before you realize that they
have decided that you have disposed of your wife and are just
looking for a few final facts to tidy up the investigation.
You panic. They ask where you were last night
and you say that you were home watching television. They ask if
anyone can verify that. Of course, no one can provide verification
because you were home alone waiting for your wife to return. You
are beginning to feel trapped. You know you have done nothing
wrong, but the police are convinced that you have. If only someone
could verify that you were home watching television all evening.
Your best friend, Charlie, has always said that he would do anything
for you. Surely he would provide you with the needed alibi. You
tell them that you were with Charlie.
When the police leave you run immediately to
the phone and call good old Charlie. You are sure that he will
lie for you, but it is imperative that you get hold of him before
the police find him and start asking him questions. There is no
answer at Charlie’s house. You make repeated calls through
Saturday night and all day Sunday. Charlie is nowhere to be found.
By Sunday afternoon the police are threatening to arrest you and
telling you it would go a lot easier if you just told the truth
and led them to the body. The only thing which prevents your being
arrested for murder is the return of your wife late on Sunday
evening. She has been away for the weekend, with Charlie.
Now the question is: Should you be prosecuted
for perjury? You did lie, but only because you felt trapped by
the false accusations of the police. Should you be prosecuted?
A lot of people in the criminal justice system think the answer
is yes. Our hypothetical is on all fours with the case of Martha
The case of Scooter Liddy is a little bit different.
Our hypothetical would be on all fours with that case if he lied,
but I don’t think he did. I can’t imagine why he would
have lied when he really had nothing to hide and no reason to
lie. I think he just did not remember well enough to suit the
inquisitors. If, however, you assume that he did lie, may we assume
that the fundamental fairness doctrine is dead and buried?