Constitutional Contract Law


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 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 and sign a statement under penalty of perjury to that effect.

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 Stewart and seems to bear some slight resemblance to that of Mr.Libby.