CRIMAL LAW - DIPLOMATIC AND LEGISLATIVE IMMUNITY

Week 4 Discussion 2
Excerpt from Criminal Law, Gardner/Anderson, 11th edition/2012
Diplomatic Immunity
Page 159 & 160
Diplomatic Immunity is an entitlement that is given to a “diplomatic agent” who is allowed full immunity from the criminal jurisdiction of the receiving state (in international law conventions, the word state means a “nation or country”.
Article 37.1 extends this immunity to members of the diplomat’s family.
According to U.S. Law (22 U.S.C. § 254 (D)) states that any action brought against a person entitled to diplomatic immunity must be dismissed.
Diplomatic Immunity may be waived by the diplomat’s home country, and in the case of serious crimes, the U.S. Government frequently request that waiver.

Legislative Immunity

Under Article I, Section 6, of the U.S. Constitution this provides U.S. Senators and representatives (shall in all cases except treason, felony and breach of the peace, be privileged from arrest during their
Attendance at the session of their respective houses and in going to and returning from the same to Legislative Immunity.
Most state constitutions extend the same or similar privileges to state legislators while the state legislative is in session.
Representatives, senators and state legislators thus have a limited degree of temporary immunity while their legislative bodies are in session.
Charges, however could be held until the legislative body adjourns.
State legislators enjoy no immunity from prosecution for federal crimes.


TWO EXAMPLES OF DIPLOMATIC IMMUNITY

2006 Case of the United States v Kuznetsov
A Federal Court denied diplomatic immunity to a Russian citizen employed by the United Nations in New York City.
2004 Case of the United States v Al-Hamdi
A Federal Court of appeals held that the diplomatic immunity give to members of a diplomat’s family ends at age 21.

TWO EXAMPLES OF LEGISLATIVE IMMUNITY

A Colorado lawmaker was granted legislative Immunity when pulled over for a suspected DUI because a legislative session was in effect.
http://www.foxnews.com/us/2012/01/28/Colorado-police-say-legislative-in

Supreme Court held in Bogan etal vs Scott-Harris, 523 U.S. 44, 118 s. Ct., 966, 140 L.Ed.2d 79 (1998) that local legislators (i.e., members of a city council and the city major) have absolute immunity from liability under 42 U.S.C. § 1983 (“§1983” Actions)
When acting in their legislative capacity.
http://www.law.cornell.edu/supct/html/96-1569.ZS.html


Describe the elements of the defense of entrapment, and give two examples of what types of police activity are not considered entrapment, and state why.

Direct Excerpt from Wikipedia .--- http://en.wikipedia.org/wiki/Entrapment
entrapment is conduct by a law enforcement agent inducing a person to commit an offense that the person would otherwise have been unlikely to commit.[1] In many jurisdictions, entrapment is a possible defense against criminal liability. However, there is no entrapment where a person is ready and willing to break the law and the government agents merely provide what appears to be a favorable opportunity for the person to commit the crime. For example, it is not entrapment for a government agent to pretend to be someone else and to offer, either directly or through an informant or other decoy, to engage in an unlawful transaction with the person (see sting operation). So, a person would not be a victim of entrapment if the person was ready, willing and able to commit the crime charged in the indictment whenever opportunity was afforded, and that government officers or their agents did no more than offer an opportunity.
On the other hand, if the evidence leaves a reasonable doubt whether the person had any intent to commit the crime had it not been for inducement or persuasion on the part of some government officer or agent, then the person is not guilty. For example, if a defendant had purchased illegal drugs from an undercover officer, he may be found not guilty if it is determined that the officer initiated the transaction or aggressively pressed the accused to complete it.
Entrapment holds if all three conditions are fulfilled:
1. The idea for committing the crime came from the government agents and not from the person accused of the crime.
2. Government agents then persuaded or talked the person into committing the crime. Simply giving someone the opportunity to commit a crime is not the same as persuading them to commit that crime.
3. The person was not ready and willing to commit the crime before interaction with the government agents.
Depending on the law in the jurisdiction, the prosecution may be required to prove beyond a reasonable doubt that the defendant was not entrapped or the defendant may be required to prove that he was entrapped as an affirmative defense.

Two examples of police activity that are not considered entrapment are if a policeman was in a stakeout and was sold drugs by a person on the street. Page 178
Per CASE – Hampton v United States, 425 U.S. 484 (1976), The court held the entrapment defense was not available to a defendant who sold illegal drugs to undercover police officers, even though a government informer, acting for the government, supplied the drugs sold.

Another is a sting operation is not improper inducement to commit a crime if it merely provides an opportunity to commit a crime. Thus, in illegal drug cases the Supreme Court held in United States v. Russell in 1973 that infiltration into a drug ring, and supplying some of the items needed to produce the illegal drugs, does not amount to entrapment.