For the first time ever, the Supreme Court of Washington in State v. Lively overturned a criminal conviction because of outrageous government conduct. This decision employed a rarely-used, and even more infrequently successful, defense to achieve an apparently just result. Indeed, courts and scholars disagree on whether the defense, based on the Due Process Clause of the U.S. Constitution, actually exists and, if it does, how it applies to the facts of a given case. The U.S. Supreme Court has neither expressly and conclusively acknowledged nor disavowed the defense and has never employed it to overturn a criminal conviction. The existence of the outrageous government conduct defense has been acknowledged by most federal and state courts. Two federal circuits, however, have expressly repudiated it. Thus, a conflict in interpreting the U.S. Constitution's Due Process Clause exists, and the U.S. Supreme Court is the only place to resolve it. Part I of this Note will discuss the background of the outrageous government conduct defense; Part II will examine the facts of the Lively case; Part III will analyze the court's decision in Lively; and Part IV will discuss the policy considerations which precipitated the outcome. This Note concludes that the outrageous government conduct defense should continue to be recognized. Courts doing so should employ a "totality of circumstances" analysis and consider relevant public policy issues to determine whether a defendant's due process rights were violated.
Matthew V. Honeywell, What Is Outrageous Government Conduct? The Washington State Supreme Court Knows It When It Sees It: State v. Lively, 21 SEATTLE U. L. REV. 689 (1998).