entrapment is a defense to criminal charges, and it's based on interaction between police officers and the defendant prior to (or during) the alleged crime. A typical entrapment scenario arises when law enforcement officers use coercion and other overbearing tactics to induce someone to commit a crime. Read on to learn more about entrapment, including case examples and standards used to evaluate an entrapment claim. (For in-depth discussion of other common defenses to criminal charges, check out Nolo's article Defenses to Criminal Charges.)
Entrapment vs. Opportunity
The key aspect of entrapment is this: Government agents do not entrap defendants simply by offering them an opportunity to commit a crime. Judges expect people to resist any ordinary temptation to violate the law. An entrapment defense arises when government agents resort to repugnant behavior such as the use of threats, harassment, fraud, or even flattery to induce defendants to commit crimes.
Case Example 1. Mary-Anne Berry is charged with selling illegal drugs to an undercover police officer. Berry testifies that the drugs were for her personal use and that the reason she sold some to the officer is that at a party, the officer falsely said that she wanted some drugs for her mom, who was in a lot of pain. According to Berry, the officer even assured Berry that she wasn't a cop and wasn't setting Berry up. The police officer's actions do not amount to entrapment. Police officers are allowed to tell lies. The officer gave Berry an opportunity to break the law, but the officer did not engage in extreme or overbearing behavior.
Case Example 2. Mary-Anne Berry is charged with selling illegal drugs to an undercover police officer. Berry testifies that, "The drugs were for my personal use. For nearly two weeks, the undercover officer stopped by my apartment and pleaded with me to sell her some of my stash because her mom was extremely sick and needed the drugs for pain relief. I kept refusing. When the officer told me that the drugs would allow her mom to be comfortable for the few days she had left to live, I broke down and sold her some drugs. She immediately arrested me." The undercover agent's repeated entreaties and lies are sufficiently extreme to constitute entrapment and result in a not guilty verdict.
Assessing an Entrapment Defense: Subjective and Objective Standards
States employ either an objective or a subjective standard to determine whether entrapment occurred.
- Objective standard. Under an objective standard, when defendants offer entrapment evidence jurors decide whether a police officer's actions would have induced a normally law-abiding person to commit a crime.
- Subjective standard. Entrapment defenses are less likely to succeed under a subjective standard. The reason is that under a subjective standard, when a defendant offers entrapment evidence, jurors decide whether the defendant's predisposition to commit the crime makes the defendant responsible for his or her actions, regardless of any government agent's inducements. (Learn more about criminal intent in Nolo's article How Defendants' Mental States Affect Their Responsibility for a Crime.)
Case Example. Let's say Jim is charged with serving as a lookout during a liquor store robbery carried out by a street gang. Jim claims that Snitch, a neighborhood friend who turned out to be an undercover police officer, entrapped him by telling him that he had to participate in the robbery or Snitch would be unable to protect him from gang retribution. In a state that employs an objective test for entrapment, a jury decides whether Snitch's actions would have induced a normally law-abiding person to participate in the robbery. In a state that employs a subjective test for entrapment, the prosecutor can offer evidence of Jim's predisposition to commit the crime, including that Jim had a lengthy rap sheet and that he was anxious to join the street gang and wanted to prove his mettle by participating in a violent crime. A jury would then decide whether Jim participated in the robbery out of his own willingness to do so, regardless of Snitch's actions.
Only Government Agents Can Entrap
Entrapment law is a leash intended to curb outrageous conduct by police officers and other public officials. An entrapment defense does not arise if private individuals convince defendants to commit crimes. For example, in the scenario involving Jim and Snitch, assume that Snitch is a private person and not an undercover government agent. In that case, Snitch's actions could not constitute entrapment under either an objective or a subjective standard.
Entrapment and the Burden of Proof
Entrapment is an affirmative defense. Thus, defendants have the burden of convincing jurors "by a preponderance of the evidence" that government agents' actions rose to the level of entrapment. In a state that employs an objective test of entrapment, a conclusion that entrapment took place results in a not guilty verdict. In a state that employs a subjective test of entrapment, a conclusion that entrapment took place results in the burden of proof shifting back to the prosecution to prove beyond a reasonable doubt that the defendant is guilty because the defendant's predisposition to commit the crime -- not the government agent's actions -- prompted the defendant to commit the crime.
Entrapment: State Law Examples
California (objective standard state): Entrapment is a defense if conduct by law enforcement agents that would likely induce a normally law-abiding person to commit a crime induced the defendant to commit a charged crime. The defendant has the burden of proving entrapment by a preponderance of the evidence. Law enforcement agents are allowed to provide opportunity for the commission of a crime, but they cannot induce people to commit crimes by engaging in overbearing conduct such as badgering, coaxing or cajoling, importuning, or other acts likely to induce a normally law-abiding person to commit a crime.
Florida (subjective standard state): Defendants who allege entrapment have the burden of proving by a preponderance of the evidence that a government agent induced the defendant to commit a charged crime. Defendants also have to offer evidence that they were not predisposed to commit the crime. If a defendant offers evidence of lack of predisposition, the burden of proof shifts to the prosecution to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime.
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