Aggressive Criminal & Traffic Attorney

Entrapment: How Far Can Police Go?

Entrapment is a defense to a criminal charge. Although many people think of all police undercover operations as “entrapment,” in fact law enforcement agents and informants may use false identities and deception in their undercover investigations. But there’s a limit: The entrapment defense is an important check on what police can do to make an arrest by enticing someone to commit a crime.
Typically, defendants raise an entrapment defense when they claim that an undercover agent or informant convinced them to commit a crime that they were not predisposed to commit. If a judge or jury finds entrapment, the defendant cannot be convicted.

The Legal Tests for Entrapment

Courts use one of two tests when deciding whether a defendant was entrapped:
  • The “objective” test. Some states ask whether the police conduct would have induced any law-abiding person to commit the crime. Here, the question is whether the police conduct in inducing the criminal act would have caused a reasonable person in the same circumstances to commit the crime, regardless of the specific mental state of the defendant. For example, assume an undercover agent asks someone to buy marijuana for that agent in a state where it is illegal. The agent says he wants the marijuana because he needs it to treat the side effects of chemotherapy. Because this type of inducement might cause anyone to commit the crime, the application of objective test would very likely result in a finding of entrapment, even if the defendant had a prior history of drug purchases for recreational reasons.
  • The “subjective” test. The majority of states and the federal courts apply a test that examines both the nature of the enticement and the defendant’s state of mind. When asserting this defense, defendants must show that they were induced to commit the crime and may have to weather the prosecutor’s attempts to show that they were predisposed to commit the crime. Let’s look more closely at the subjective test.

Proving Entrapment Under the Subjective Test: The Undercover Officer Was Insistent and the Defendant Was Resistant

The subjective test looks first at the police conduct, then turns its attention to the defendant’s predisposition (or not) to commit the crime charged.

Inducement

Inducing someone to commit a crime involves more than simply asking that person to commit it. Law enforcement can even lie about certain facts, by using false names, businesses, or associates. To prevail, defendants must usually show at least some persuasion or mild coercion. For example, an undercover agent might ask someone to commit a crime based on friendship, hardship, or a play for sympathy. If a judge or jury concludes that a defendant was pressured to commit a crime, they will likely find that the defendant has been induced. To establish inducement in most jurisdictions, a defendant will be required to show that it is more likely than not that he has been induced by law enforcement to commit a crime.

Predisposition

Defendants who have presented evidence that they were induced may not be home free just yet. While there must be inducement under the subjective test, the question of predisposition is usually the more important factor. Once inducement has been raised by the defense, the prosecutor has the burden to prove, beyond a reasonable doubt, that the defendant was predisposed to commit the crime. In other words, the government must demonstrate that the defendant was ready, willing and able—that his will to follow the law was not overcome by the inducement. For example, if the prosecutor can show that the defendant himself had previously proposed similar criminal acts to other people, the defense of entrapment will be extremely difficult to establish. But on the other hand, if the defendant has never engaged in (or even discussed) the proposed criminal act, the prosecutor may fail to establish predisposition. In short, when there is inducement and a lack of predisposition, the defendant has established the entrapment defense.

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