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In criminal law, entrapment consists of a government agent inducing a person to commit an offense that the person would otherwise have been unlikely to commit. In many jurisdictions, entrapment serves as a possible defense to criminal liability. The rationale underlying the entrapment defense is that it serves as a deterrent to government agents from targeting innocent civilians by using reprehensible policing tactics, which induce those persons to engage in criminal activity.

No entrapment defense is possible, however, when a person is ready and willing to break the law, and the law enforcement officer merely provides what appears to be a favorable opportunity to do so. For an entrapment defense to succeed, the evidence must leave a reasonable doubt whether the person had any intent to commit the crime but for the inducement or persuasion of the government agent. As a result, entrapment defenses are difficult to mount for defendants with prior related convictions.

United States

The entrapment defense in the United States has evolved mainly through case law as opposed to statutory provision. Generally, three actions must occur for a person to be entrapped into action: (1) the idea for committing the crime came from the government agent and not the accused, (2) the government agent persuaded the accused into committing the crime and did not provide a mere opportunity to act, and (3) the accused was not predisposed to committing the crime before interacting with the government agents.[1]

Two distinct tests exist in the U.S. courts for determining whether entrapment has taken place: the subjective test and the objective test. Under the subjective test, the court looks at the defendant's state of mind, and entrapment can only be claimed if it is determined that the defendant had no "predisposition" to commit the crime. The objective test, by comparison, looks instead at the government agent's conduct, and entrapment occurs only when the government agent caused an objectively law-abiding person to commit a crime.[2]

Under either test, the entrapment defense is a difficult one to prove and does not generally succeed. Additionally, employing an entrapment defense is risky because the jury will hear about the defendant's past criminal behavior, if any, which might prejudice the jury. Entrapment is not a constitutionally required defense and states are therefore not bound to provide for it as a defense in their criminal codes.[3]

The Subjective Test

U.S. Federal courts and approximately two-thirds of the State courts have adopted the subjective test for entrapment. The key consideration in the subjective test is the state of mind of the accused. In order to sustain an entrapment defense, the accused must first show that the government agent induced him to commit the charged offense. The burden of proof then shifts to the government to demonstrate beyond a reasonable doubt that the defendant was predisposed to commit the crime prior to the time of the government contact.[4]

The U.S. Supreme Court clarified the subjective test for entrapment in Sherman v. United States, wherein the Court overturned the conviction of a recovering drug addict who had been repeatedly solicited for drug sales by a former addict working with the government. Focusing on the defendant's predisposition to commit the crime of selling illegal narcotics, the Court noted his criminal history but took into account his attempts to rehabilitate himself and the time elapsed since his last infraction in concluding that he was not predisposed to commit the charged crime. In defining entrapment, the Court said, "a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.[5]

Normally the question of disposition is reserved for the jury, but in cases where the judge finds that no juror could find beyond a reasonable doubt that the defendant was predisposed to the criminal activity, the judge will establish entrapment as a matter of law and terminate the prosecution. A recent example of entrapment as a matter of law was shown in Jacobson v. United States, which overturned the conviction of a man charged with the crime of receiving child pornography through an undercover government sting operation. The opinion focused solely on the defendant's predisposition to commit the charged crime, ultimately exonerating the defendant because no other illicit material was found in his home after arrest, the defendant engaged in no prior illegal activity, and it took nearly two years of inducement before he acted in an illegal manner.[6] The subjective versus objective test discussion was noticeably absent from the Jacobson opinion, indicating that the distinction might not be material to future entrapment decisions.

The Objective Test

Under the objective test, the predisposition of the accused does not come in to play. The objective test for entrapment, supported by the Model Penal Code, instead asks whether the government agent is "employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it."[7]

In nearly all states employing the objective test, the burden of proof is on the defendant to show that the government agent objectively induced the criminal behavior.[8] Some examples of improper government action supporting the entrapment defense include excessive financial inducement, sexual favors given to the accused and exploitation of emotional problems of the accused. Such actions are objectively seen as the government going too far in creating crime rather than in detecting it.

See Defenses