Although an entrapment defense can be a very effective way to defeat many types of criminal charges, for the defense to be valid, it must contain two elements. First, the defendant must prove through evidence that the crime was induced by law enforcement. The second element of entrapment is the lack of the defendant’s predisposition to commit the crime. If either of these elements are missing, it can be fatal to an entrapment defense.
What is Entrapment?
In criminal law, entrapment occurs when government agents use persistent or manipulative efforts in extreme to convince an otherwise law-abiding person to engage in criminal conduct. While an entrapment defense can be applied in a wide variety of types of cases including things like solicitation of a prostitute, drug crimes, and even violent acts, the factors that surround the criminal conduct play a significant role on whether entrapment is responsible. When law enforcement officials resort to behaviors like harassment, threats, fraud, persistent coercion or even appeals to sympathy based on extraordinary circumstances, a successful entrapment defense may be an effective way to have serious charges against a defendant dismissed.
Understanding Inducement in an Entrapment Defense
When a law enforcement officer or other government agent merely provides the defendant with the opportunity or temptation to voluntarily and deliberately engage in criminal activity, or simply solicits him or her to commit a crime, it is not considered inducement for entrapment purposes. For example:
- An individual is in an area where prostitution is common and he or she is approached by an undercover agent who offers sexual favors for a fee. The individual accepts the proposal and the person is arrested. In this scenario, the officer did not commit entrapment because the individual willingly and readily accepted the proposal to engage in criminal activity without being induced.
- A person who is suspected of being involved with past burglaries is told by an undercover government agent about an upcoming opportunity to commit burglary. He or she then acts on that opportunity and is arrested. This is not entrapment because the person was not coerced to commit the crime and he or she acted on individual free will.
In the following example, inducement is more evident.
- A woman is suspected of selling illegal drugs. After several attempts at trying to lure the woman into engaging in criminal activity, an undercover officer tells the woman that she must sell her stash of drugs to the agent to help a dying relative cope with intense pain. The agent then promises the woman that if she sells the drugs the agent will stop harassing her at her home. The woman finally breaks down and sells the officer the drugs and is arrested. In this scenario, the agent’s harassment and appeals to sympathy are likely enough to constitute inducement in an entrapment defense.
A Defendant’s Predisposition to Engage in Criminal Activity
Even with an agent’s inducing behaviors being shown, if the prosecution can prove beyond a reasonable doubt that a defendant had the predisposition to commit the criminal act without inducement, the defense of entrapment is ineffective. Although past criminal history is sometimes used by the prosecution to try to prove a predisposition to engage in criminal activity, it is not always a determining factor in the courts. If the criminal history is old enough or is irrelevant to the type of charge being faced, the past activity is typically not even admitted as evidence. Also, a defendant’s predisposition can sometimes exist in the absence of any criminal history. If he or she readily and willingly takes advantage of the opportunity to commit a crime, that in itself may be enough to establish predisposition.
Only Law Enforcement Officials and Other Government Agents Can Constitute Entrapment
Entrapment law is intended to help prevent government agents from using tactics that would cause any reasonable person to commit a criminal act. When private individuals use threats, harassment or other behaviors to convince a person to commit a crime, an entrapment defense is not applicable. For instance, if a gang member convinces a store owner to commit a crime in order to be protected from harm, it does not constitute entrapment.
Every Criminal Case is Unique
When a defendant is facing a criminal charge that he or she believes is caused by impermissible police officer or agent influence, the unique circumstances that surround his or her case should thoroughly be evaluated to determine whether an entrapment defense is the best option.
- Past criminal history and previous conduct can significantly influence the advisability of an entrapment defense.
- Other or additional legal options may be available to victims of entrapment.
- Certain acts of deceit by the government agent may or may not be enough to establish an effective entrapment defense.