Entrapment

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Entrapment is a defense when the government (through law enforcement officers or otherwise) induces a person to commit a crime and then tries to punish the person who committed it. There are currently two tests to determine whether entrapment exists.

  • Subjective Approach - This test has been adopted by federal courts and 2/3rds of state courts. The U.S. Supreme Court outlined the parameters of this test in Sherman v. United States, 356 U.S. 369 (1958) and Sorrells v. United States, 287 U.S. 435(1932). The test has two parts:
  1. Was the offense induced by a government agent?
  2. Whether the defendant was predisposed to commit the crime prior to the initial contact by the government.

Under this test, even if the defendant presents sufficient evidence of entrapment, if a judge or jury believes that the suspect was predisposed or likely to commit the crime anyway, the suspect can still be found guilty despite the evidence that a government agent suggested the crime and helped the defendant to commit it.

  • Objective Approach - Supported by the Model Penal Code, the so-called "objective approach" asks whether the crime was induced by "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." ALI Model Penal Code 2.13 Section (1962)

Additionally, the entrapment defense is not available if a police officer merely provides the opportunity for the commission of a crime by one otherwise ready and willing to commit it. For example, if an undercover police officer poses as a drug addict and a defendant sells the officer drugs, the seller does not have an entrapment defense. The officer merely provided an opportunity for the defendant to commit a crime. On the other hand, in situations where a government agent planted the idea of a crime in an innocent person's mind and induced or coerced the person to commit the crime, an entrapment defense is a viable option.

The entrapment defense is difficult and not generally successful (especially if the defendant has prior convictions for the same type of crime). If the defendant does in fact have such a history of prior convictions, entrapment is a risky defense because the jury will hear about the defendant's past criminal behavior which will likely be very prejudicial.

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