Entrapment as a Defense to a Criminal Charge

Police sting operations are commonplace. Agents go undercover to buy drugs or solicit prostitution, or they might use an undercover online profile of a child to find sexual predators. These undercover uses are legal, but if police (or other government officials) go too far in their ruse, a defendant could raise the defense of entrapment.

What Is Entrapment?

Entrapment refers to police or government actors who induce someone to commit a crime when that person wasn't inclined to do so. Police can lie and go undercover to ferret out criminal activity, meaning they can provide and suggest criminal opportunities. But police can't originate the crime, implant the idea into an innocent person's head, and induce that person to commit the crime. Manufacturing a criminal crosses the line to improper police conduct.

How Is Entrapment Used as a Defense?

Entrapment is an affirmative defense to criminal charges. It prohibits a conviction when defendants can show they had no original intent to commit a crime, and did so only because law enforcement agents persuaded or coerced them.

To prove entrapment, the defendant must show that:

• law enforcement agents introduced the idea of committing a crime
• the defendant was not predisposed to commit the crime, and
• law enforcement agents persuaded or coerced the defendant to commit the crime (possibly by improper conduct).

Some states consider entrapment to be an excuse defense, in that the defendant would not have committed the crime but for police inducement. Other states consider entrapment to be a defense designed to prevent police misconduct even if the defendant was culpable.

How Defendants Prove Entrapment

In order to prove an entrapment defense, the defendant must provide evidence that satisfies either an objective or a subjective standard, depending on the law in the state where the defendant is charged.

Objective Standard: Entrapment by Police Misconduct

Under an objective standard, the defendant must prove that the actions of law enforcement would have induced any law-abiding citizen to commit a crime. The focus under this standard is more on the actions of law enforcement and less on the defendant's predisposition to commit the crime.

Subjective Standard: No Predisposition to Entrapment

Under a subjective standard, defendants must prove they were not predisposed to commit the crime, regardless of the actions of the police. Even if a police officer's actions were extreme and inappropriate, the jury or judge deciding an entrapment case under this standard must consider whether the defendant was predisposed to commit the crime and whether that motivated the defendant more than police actions.

Proving Entrapment

Under the objective standard, a defendant must show evidence that police went beyond providing criminal opportunity. Evidence of police inducement could include threats, coercion, harassment, false promises or representations, or undue pressure. Evidence of inducement will establish entrapment and the judge or jury must find the defendant not guilty.

Under the subjective standard, the defendant isn't necessarily entitled to an acquittal just by proving inducement. Instead, the judge or jury must also consider whether the prosecution has proven beyond a reasonable doubt that the defendant committed the crime based on criminal predisposition and not because of police actions (even if the actions were overly persuasive). The prosecutor might use a defendant's prior criminal history or lack of reluctance to commit the crime as evidence of predisposition.

Examples of Entrapment Defenses

Whether the actions of the police qualify as entrapment will depend heavily on the facts of any given situation, as well as the standard (objective or subjective) that is used in the case. Here are some scenarios that suggest a finding of entrapment—or not.

Defendant Has an Entrapment Defense

Below are two examples where the defendant would have an entrapment defense under both the objective and subjective standards described above.

Entrapment example 1. Suppose the police threaten to gravely injure an average, law-abiding citizen unless he delivers a package of drugs to another person, collects payment, and brings the money back to the police. The police entrapped the person because he had no predisposition or intent to engage in criminal activity and did so only under duress. This is a very simple example of entrapment, which also satisfies either the objective or the subjective standard because:

• under the objective standard, the police conduct (threatening physical harm) was so extreme, and
• under the subjective standard, the defendant had no interest in or intent to commit any crime.

Entrapment example 2. Imagine a homeless man who is a petty criminal and drug addict with prior convictions for possession of small amounts of drugs and minor theft. The police suspect that he sometimes sells drugs for a local drug kingpin but it's only a hunch. An undercover officer contacts the man on the street and offers him money to pick up and deliver a shipment of drugs (a pound of meth) coming into town on an Amtrak train. (The shipment is not real. It has been created by the police.) The man tells the undercover officer that he only uses and does not get involved in drug trafficking. The undercover officer approaches the man every other day for over a month, buys him meals, and tries to talk him into the deal. The man refuses again and again but is finally worn down with offers of the money plus an ounce of the drug and a hotel room for a week—all of this on a day when he is out of drugs and desperate to get high.

This scenario would constitute entrapment because:

• under the objective standard, the police provided everything for the criminal process and preyed on the man's vulnerabilities to persuade him to commit the crime instead of accepting the answer, "No," and
• under subjective standard: the man was not interested in being involved in drug trafficking (and the police could not prove that he had a predisposition to commit the crime of drug trafficking).

Defendant Doesn't Have an Entrapment Defense

Here is an example of police activity that is not entrapment. A police agency sets up a sting operation, putting undercover police officers on the street who pose as prostitutes to catch individuals who use prostitutes. A man goes to an area where street prostitutes are known to be available and one of the undercover officers approaches him as he is walking by, asking if he wants a date. The man says yes, and he and the undercover officer agree to a deal and go to an alley, where the man is arrested. This is not entrapment because, as soon as the officer posing as a prostitute asked if the man wanted a date and began discussing price, the man said yes and agreed on a price, indicating he was ready and willing to hire a prostitute. The officer also did nothing to persuade or induce the man to hire a prostitute.

In this scenario, even if the undercover police officer had acted inappropriately in trying to entice the man to pay for the prostitute's services, it could be difficult for the defendant to prove entrapment if he has prior convictions for soliciting prostitutes and the prosecutor has evidence that shows the man was in the area looking to hook up with a prostitute.

Is Entrapment Illegal?

Entrapment is illegal, but the remedy is a defense to the charges for the victim. This defense—like the exclusionary rule for illegally obtained evidence—strives to deter police misconduct. The police lose their case, the offender walks free, and they may face disciplinary actions. If the extreme or outrageous behavior crosses the line to criminal conduct, it's possible a prosecutor would file criminal charges against the officer.

Getting Legal Help

Any time you face criminal charges, it's best to speak to a criminal defense attorney as soon as possible. Ask for a public defender if you can't afford an attorney. Your attorney can help you understand if you have a viable entrapment defense. Remember it's not enough to be arrested after a sting operation to claim entrapment.