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.