What is the entrapment defense?

Does entrapment still exist?

Absolutely.  It’s an affirmative defense, meaning the defendant bears the burden of proving by a preponderance of the evidence that they were entrapped.  A preponderance means the defendant must convince the jury that it is “more likely than not” that they were entrapped.

Entrapment is when law enforcement officer (or their agent) engages in conduct that would cause a normally law-abiding person to commit the crime.  A person is an “agent” of the police when they do something at the request, suggestion or direction of an officer.  The person doesn’t have to know they’re doing something for an officer or that they were acting as a police agent.

What sort of conduct would be entrapment?

The examples from the jury instruction on entrapment include “badgering, persuasion by flattery or coaxing, repeated and insistent requests or an appeal to friendship or sympathy.

The other example is conduct by the officer that would make commission of the crime unusually attractive to a normally law-abiding person. That can be things like a guarantee that the conduct is not illegal or that it would go undetected, an offer of extraordinary benefit or other similar conduct.

However, if an officer simply gives the defendant an opportunity to commit the crime or merely tried to gain the defendant’s confidence through reasonable and restrained steps, that is not entrapment.

The jury is to focus on the officer’s conduct primarily, but they must look at all the circumstances as well. They should look at the defendant’s actions before, during and after the acts, the defendant’s responses to the officers urging along with the seriousness of the offense.

Keep in mind – entrapment is conduct by officers that would convince a normally law-abiding person to commit the offense. If there is evidence of particular intentions by the defendant, a prior predisposition to commit the offense, etc – that can be considered.  For example, a conviction for the same offense in the past may be enough to show that the defendant was predisposed to commit the crime and it didn’t take undue convincing, coercion or entrapment by the police to get them to commit the offense.

Many agencies are audio and video recording all their officers, both street patrol and investigations and sting operations.  A thorough review of all the evidence would be necessary to determine if entrapment is a viable defense for you in your case.

To discuss your case and any defenses further, give me a call or send an email.

Joe Dane



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