Entrapment is a defense to criminal charges. It prohibits a conviction when the defendant can show that he had no original intent to commit a crime, and did so only because law enforcement agents persuaded or coerced him. Law enforcement can provide opportunities for suspected criminals to commit crimes (through undercover operations or stings, for example) and then charge the offender, but police cannot “manufacture crime.”

Affirmative Defense

Entrapment is an affirmative defense, which means the defendant has the burden of proving that entrapment occurred. The defendant must prove that:

• law enforcement agents approached the defendant and/or introduced the idea of committing a crime
• the defendant was not “ready and willing” to commit the crime, and
• law enforcement agents did more than just provide an opportunity to the defendant -- they actually persuaded or coerced the defendant to commit the crime, possibly by improper conduct.

For more information about affirmative defenses, see Affirmative Defenses in Criminal Cases.

Objective v. Subjective Standard

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

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 crime.

Subjective standard

Under a subjective standard, the defendant must prove that he did not have a pre-disposition 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.

Burden of proof

Under the objective standard, if the defendant can prove entrapment by a preponderance of the evidence (this is a less strict requirement than reasonable doubt), the judge or jury must find him not guilty. Under the subjective standard, the defendant is not entitled to a not guilty verdict. Instead, the judge or jury must also consider whether the prosecution has proven beyond a reasonable doubt that the defendant committed the crime because of his criminal predisposition and not because of police actions (even if the actions were overly persuasive).

What Is and Is Not Entrapment

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.

Entrapment

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 have 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:

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

For another example of entrapment, under either an objective or subjective standard, 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 king pin but it is 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 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 week, 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:

• 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,” or
• subjective standard: the man was not interested in being involved in drug trafficking (the police could not prove that he had a predisposition to commit the crime of drug trafficking).

Not entrapment

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, 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.

Consult an Attorney

If you are charged with a crime, contact an attorney immediately. If you think you might have an entrapment defense or any other defense, you'll need a competent attorney who understands the law regarding such defenses. It also is in your best interest to be represented by an attorney in every phase of a criminal case.

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