The Defense of Entrapment



Entrapment is a complete defense to a criminal charge that rests on the theory that a government agent originated a criminal guise, implanted a disposition to commit a criminal act into an innocent person’s mind, and then induced the crime in a way that the Government could prosecute.


A valid defense has two elements. The first element is that the Government's inducement of the crime. The second and most important element of an entrapment defense is the defendant’s lack of predisposition to engage in the criminal conduct.


The defense has the burden of proving that a government agent induced the crime. An official’s mere solicitation to commit a crime is not the same as inducing the act. In addition, a government official’s use of devices, strategy, pretense, or deceit also does not prove inducement. Instead, proving that inducement occurred requires the defense to show persuasion or mild coercion such as promises made by the agent based on need, sympathy, friendship, or other promises that would otherwise blind an ordinary individual to their legal duties to abide by the law.


Even if the defense proves inducement, also establishing predisposition is a necessary element to a successful entrapment defense. This central focus of a predisposition inquiry will focus on whether or not the defendant was an unwary innocent individual, or an unwary criminal who readily committed the crime given the opportunity. Predisposition should not be confused with intent or mens rea. There are two important notes about this type of situation: a person can still have the intent to commit a crime, yet still be entrapped. The second element is that predisposition may still exist even in the absence of previous criminal involvement. The willingness to commit a criminal act, such as an instance where a defendant willingly accepts an undercover agent's offer to buy or sell drugs, may itself establish predisposition.


Recent Entrapment Cases

In two of the most recent entrapment cases, the court held that a defendant who denies committing a crime is entitled to an entrapment instruction, however, sufficient evidence must be present from which a jury could conclude that entrapment occurred. This raises the possibility that the defendant may argue an inconsistent defense: that he or she did not commit the crime, but if he or she did commit the act, it was entrapment.


Although entrapment is generally a question for a jury the Supreme Court found in one case that entrapment is a matter of law. In a particular case, a defendant ordered child pornography after he had been the target of repeated mailings and communications from Government agents and fictitious organizations for 26 months. The Supreme Court found that the Government failed to prove beyond a reasonable doubt that the defendant’s deposition was of his own accord.


Proving Predisposition

A defendant who claims entrapment opens the door to an appropriate and searching inquiry into his own conduct and predisposition as it relates to such an issue. Therefore, predisposition may be shown by evidence of other crimes that may not have otherwise been admissible. After a particular case that went to the Supreme Court, entrapment instructions have put litigation in danger, despite the fact that in a particular case, the majority insisted that it was not altering traditional entrapment concepts. Nevertheless, it is imperative that instructions are accurate.


Outrageous Government Conduct

Through all of the cases that involved an outrageous government conduct allegation, the Supreme Court has never found that the government's use of an undercover agent or informant (or the use of deception) violates any type of due process laws. However, in a particular case, the Supreme Court found that these tactics due open the possibility to a due process violation, however, the defendant’s rights were not yet violated.


Outrageous government conduct can only be established when the level of government conduct is so outrageous and fundamentally unfair that it is “shocking to the universal sense of justice”. Furthermore, no court of appeals has yet to conclude that a predisposed defendant may establish a due process violation simply because he was induced to commit a crime by an undercover agent or informant.


Defendants who are claiming to be victims of outrageous government conduct will sometimes argue that the district court should move to dismiss the indictment. However, without a due process violation, a district court does not have the authority to dismiss an indictment on this basis.


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