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Entrapment

Entrapment is the government's unlawful enticement of a person to commit a crime for the purpose of later charging that person with a crime. A person is entrapped if a law enforcement officer, or his or her agent, engaged in conduct that would cause a normally law-abiding person to commit the crime. If a person accused of a crime can prove that he or she had no predisposition to commit a crime and that the police officers persuaded or encouraged the accused to commit the crime, then the criminal charges must be dismissed.

Entrapment is a defense to a crime when law enforcement originates the crime and uses methods likely to lure otherwise innocent people into committing a crime, regardless of whether the defendant was predisposed to commit the crime. The focus is on the police and not on the defendant's intentions, character, or predisposition. Some examples of Entrapment include badgering, persuasion by flattery, coaxing, cajoling, repeated and insistent requests, or an appeal to friendship or sympathy. The Entrapment defense is not available for a person who is influenced or convinced to commit a crime by a friend, business associate, or family member. Entrapment cannot be used as a defense when law enforcement merely affords an opportunity to commit a crime. The legal reasoning for this is that normal law-abiding people who are given an opportunity to commit an offense will refrain and reject the temptation to do so.

Undercover drug-buys, solicitation of prostitution and bribery cases are the most common types of case where the defense of Entrapment is raised and is almost never successful. In these cases, the undercover law enforcement officers are simply providing an opportunity for people to commit a crime and providing the opportunity is not enough for Entrapment to kick in. There has to be substantial conduct on the part of law enforcement.

There are generally two approaches used in the Entrapment defense. The majority of states use the subjective test also referred to as the "origin of intent test" while a minority of states use the objective test also referred to as the "police conduct test." The "origin of intent test" focuses on where the intent to commit the crime originates. So if the police or the police informant originates the crime, and induces the commission of the crime and the defendant is in fact an innocent person, then the defendant was entrapped and is entitled to be found not guilty. Under the police conduct test (used in California) the focus is on the behavior of law enforcement. Under this test, if the police originated the crime and lured an otherwise innocent defendant to commit a crime (even if he or she was predisposed to commit the crime) then the defendant could successfully raise Entrapment as a defense and be found not guilty.

  1. Example 1: Assume Tom is a veteran drug dealer and former high school friend of Jerry. Jerry, an undercover cop, runs into Tom and reminisces about the old high school days. He then hands him $100 to buy some drugs. When Tom hands over a small envelope containing drugs he immediately identifies himself as a police officer and arrests Jerry.
  2. Example 2: Megan, an undercover police officer stands on a popular street corner near the local college campus on a Saturday evening. She is provocatively and scantily dressed. Bill, a college senior sees her and approaches her and offers her $200 for sex. Megan then directs Bill to meet her at the nearby hotel where she has rented a room for the night. When Bill arrives at the hotel and knocks on her room door he is immediately arrested and taken to the police van where he is interrogated and booked.

Were Tom and Bill entrapped? In both examples, Tom and Bill were predisposed to commit the crime. Tom was a veteran drug dealer and was prepared to sell drugs to anyone who was interested. With regards to Bill, he solicited Megan to have sex and offered her money while she stood on the street corner. Megan may have been provocatively dressed as she stood on the street corner but Bill initiated the contact and the conversation with Megan and willingly participated in the crime. The Entrapment defense would not succeed in these two scenarios because simply affording or providing an opportunity to commit a crime would not constitute Entrapment. Tom could have refused to sell the drugs and Bill could have just passed Megan without soliciting her for sex.

In a criminal trial, if a defendant intends to use the Entrapment defense, he or she must admit to committing the crime but assert that he or she should be found not guilty because of the Entrapment. The Entrapment defense must be proved by a preponderance of the evidence. If a defendant is unsuccessful in proving Entrapment, then he or she likely will be found guilty.

If you believe you were entrapped into committing a crime, consult with an experienced criminal defense attorney to learn about your rights, defenses, and all of your legal options.