Entrapment Defense

Entrapment is the instigation of an offense by a law enforcement officer and the subsequent procurement of the commission of the
offense by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. Entrapment occurs when an individual acts to induce or lead another person to commit a crime not originally envisioned by that person for the purposes of trapping that person for the offense committed.

Hence, the defense of entrapment prohibits law enforcement officials from instigating criminal acts by otherwise innocent persons in order to punish them. In other words, the purpose of the doctrine of entrapment is to prevent the police from making criminals out of normal “law-abiding” persons,” that is, persons who can be induced to commit crimes only by grave threats, by fraud, or by extraordinary promises. The central inquiry is whether law enforcement officials implanted a criminal design in the mind of an otherwise law-abiding citizen or whether the government merely provided an opportunity to commit a crime to one who was already predisposed to do so.

The defense of entrapment is a judicially created doctrine which probably evolved from the increasing use of informers and undercover agents in the detection of crimes, particularly liquor and narcotics offenses. In the federal court system, the defense has been recognized and refined in many decisions, and it has been universally accepted by the states through judicial decision or legislation.

As a general rule, in order to raise an entrapment defense, the defendant must first admit that he or she committed the crime and then show that he or she did so because of unlawful inducement by a law enforcement officer, and the rationale for this rule is that it is thought to be factually inconsistent and confusing for a defendant to deny that he or she committed a criminal act and simultaneously to complain that he or she was entrapped into its commission.  In cases involving a charge of conspiracy, a defendant may deny being a party to a conspiracy and yet raise the issue that any overt acts done by him or her have resulted from entrapment.

A valid entrapment defense consists of three distinct elements: (1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime.  In order to raise the defense of entrapment, the defendant is required to show evidence of government inducement to commit the criminal act and a lack of predisposition to engage in the criminal act prior to contact with government agents. Inducement by the government must be sufficiently persistent to rebut as a matter of law a presumption of predisposition resulting from a criminal undertaking in order to establish the entrapment defense. Accordingly, the court held that the defendant was induced to perform drug transactions, and thus the inducement element of the entrapment defense was satisfied, in a trial for unlawful delivery of a controlled substance, where the informant, acting as agent of the police, solicited the defendant constantly to sell drugs, the defendant repeatedly refused to sell drugs, and the defendant agreed to sell drugs only after the informant offered sexual favors. However, evidence that the defendant was a supplier to a drug dealer from whom the undercover police officer was buying drugs and that the defendant was initiating sales, including the sale for which he was arrested, by calling the drug dealer at home, supported a finding that the police did not induce the defendant to sell drugs when he otherwise would not, so that the defendant was not entrapped.

The generally accepted test of entrapment is the “subjective” or “origin of intent” test, which allows the defense only if the criminal act has been the product of the creative activity of law enforcement officials; under this test, which applies in the federal courts and a majority of state courts, the focus of inquiry is on the defendant’s predisposition to commit the offense charged.

When the question of entrapment is raised, a court applying the subjective test makes a two-part inquiry to determine if the police officers or their informants have initiated and actively participated in the criminal activity, and if there is evidence that the accused has been predisposed to commit the crime so that the proscribed activity has not been solely the idea of the police officers. Evidence that the government initiated contact with a defendant, proposed a crime, or solicited or requested the defendant to engage in criminal conduct, standing alone, is insufficient to constitute “inducement” for purposes of entrapment. Thus, the court held that the evidence did not support a claim of sentence entrapment raised by the defendant convicted of distribution and trafficking in methamphetamine, where the defendant was predisposed to distribute trafficking or near-trafficking quantities of methamphetamine; the defendant sold relatively large amounts of drugs to people he thought were also dealing, and the defendant asked the buyer if the buyer wanted more methamphetamine, which the buyer declined.

In a prosecution for offering or paying a bribe, the defense could not be successfully interposed where the accused initiated the transaction by offering or suggesting the payment of a bribe, and the law enforcement officers, public officials, or others to whose conduct the doctrine applied, thereafter pretended to co-operate by furnishing an opportunity or otherwise aiding the accused in order to facilitate the completion of the offense for the purpose of prosecuting the accused or obtaining necessary evidence. .

In a prosecution for offering a bribe, the court held that the defense of entrapment cannot be sustained where the accused is already engaged in an existing course of offering or paying bribes, or had already formed the intention or design to commit the offense or similar crimes, and government officials or agents having reasonable cause to suspect that the accused is willing to commit the offense gives him or her an opportunity to do so in order to trap and prosecute him or her.

Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit the criminal act, and then induce the commission of the crime so that the government may prosecute. When the government’s quest for convictions leads to the apprehension of an otherwise law-abiding citizen who, if left to the citizen’s own devices, would never have run afoul of the law, the courts will intervene. The types of conduct that go beyond mere solicitation and which indicate inducement include: aggressive persuasion, coercive encouragement, lengthy negotiations, pleading or arguing with the defendant, repeated or persistent solicitation, persuasion, importuning, and playing on the sympathy or other emotion. Similarly, inducement, such as might support an entrapment defense, may take the form of persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy, or friendship.

Where a defendant has been involved in a series of crimes, the fact that he or she is able to establish entrapment at the beginning of the series does not necessarily mean that the entrapment defense applies to all of the crimes in the series. The initial entrapment does not immunize the defendant from criminal liability for subsequent transactions that he or she has readily and willingly undertaken. Accordingly, the court held that the initial entrapment of a defendant did not necessarily extend to a later drug sale to the same government informant, where the later sale was initiated, at least in part, by the defendant herself, and where the defendant told the informant that she almost sold the drugs to somebody else before the informant arrived; such circumstances indicated predisposition which was not causally related to the first induced sale.

The doctrine of entrapment is concerned solely with acts done by the agents of the government, or persons acting on those agents’ instructions. As a general rule, entrapment does not extend to acts of inducement on the part of a private citizen who is not an officer of the law or government agent, and acts to which an officer is not a party, and the same rule applies under various state laws. It is the authority of the government official, whether actual or apparent, that is crucial to the entrapment defense.

There is a variation on the ordinary defense of entrapment, called the defense of entrapment by estoppel based on representations of a government official, which applies where the defendant establishes by a preponderance of the evidence that a government official told the defendant that certain criminal conduct is legal, the defendant actually relied on the government official’s statements, and the defendant’s reliance was in good faith and objectively reasonable in light of the identity of the government official, the point of law represented, and the substance of the official’s statement.