Entrapment is a defense to criminal charges, through which a defendant alleges that a police officer or somebody working as an agent of a police or government agency (a government agent) improperly induced the defendant into committing a crime and that, but for the inducement, the defendant would not have committed the crime. Entrapment is an affirmative defense, meaning that the defendant has the burden of proving that entrapment occurred.
Although claims of entrapment often involve the direct action of a police officer, including undercover officers, the entrampment defense may also be based upon the actions of somebody who is working for the police. For example, a person enlisted by the police as an informant might commit acts that support an entrapment defense, with those actions attributable to the police by virtue of that relationship. The police may also use civilians to assist with sting operations, such as to investigate the sale of alcohol to minors, and the action of the civilian in association with the sting operation is similarly attributable to the police.
The entrapment offense is most often brought in situations in which the victim is a willing partcipant in the crime, as police sting operations can most easily target that type of offense. For example, a sting operation may have undercover police officers who attempt to buy drugs or solicit prostitutes, or may pose as prostitutes to arrest people attempting to solicit prostitutes. They might target a government official who is suspected of taking bribes, by setting up a situation in which that person may solicit or accept a bribe.
Any defendant may raise an entrapment defense, but the defense is rarely raised. There are three principle reasons why the defense is not often used:
- It is necessary to concede involvement in the crime to raise the defense of entrapment. Thus, if a jury rejects the entrapment defense, conviction is near certain.
- It is difficult to prove entrapment. After the entrapment defense was successfully used in a high profile case in the mid-1980's, the trial of John DeLorean, legislatures narrowed the defense and made it much more difficult to prove.
- It may open the door to negative character evidence. If a defendant attempts to argue that he would not have committed a criminal act but for the government's actions, the prosecution may be able to introduce evidence of past conduct, including criminal conduct, that would otherwise be excluded from evidence in order to attempt to prove that the crime was consistent with the defendant's character.
Although it may be technically possible to attempt to argue innocence, while also asserting, "But if I did it, I was entrapped", that type of inconsistent defense can severely damage a defendant's credibility with the finder of fact.
Defendants do not have a constitutional right to raise an entrapment defense. Thus, states may pass statutes that narrow the defense or restrict its availability, or may even eliminate entrapment as a possible defense to a criminal charge.
For a successful entrapment defense, it is necessary to prove more than that the crime would not have occurred but from the actions of a government agent, or even that the government agent provided tools or contraband that were necessary for the commitment of the crime. The elements of an entrapment defense are that:
- Inducement: The government induced the crime; and
- Lack of Predisposition: That the defendant (or an ordinary person in the position of the defendant) would not have committed the crime but for the government's inducement.
A defendant must first prove that an improper inducement occurred through the actions of a government agent and, having proved that inducement, must convince the finder of fact (jury, or judge in a bench trial) that but for the inducement the defendant would not have been predisposed to commit the crime. That is, the finder of fact must conclude that the defendant was an innocent person, and not somebody who was predisposed to commit a criminal act who simply availed himself of the opportunity presented by a government agent.
Opportunity vs. Inducement
The entrapment defense requires more than proof that a government agent provided the defendant with the opportunity to commit a crime. The defendant must show that the government actor induced the criminal behavior.
For example, in a sting operation for the sale of liquor to minors, the government actor may be a minor who attempts to buy alcohol from a store or a bar. If the clerk sells alcohol to the minor, either without checking the minor's ID or while knowing that the minor is underaged, the clerk may be successfully prosecuted for that offense even though the sale to the minor only occurred due to the conduct of the sting operation.
In contrast, if the police provided the minor with a false ID card that, for all intents and purposes, would appear to be genuine and which showed the minor to be of legal age, and the clerk verified the customer's age from that ID card, the clerk would be able to argue that the government's actions induced the sale, and that it would not have occurred but for the government's deception.
In some jurisdictions, if the government actor misleads the defendant into believing that the defendat's actions are legal, and the defendant reasonably relies upon the government agent's misrepresentation of the law, the defendant may be able to succeed in an entrapment defense.
When evaluating the defendant's lack of predisposition to commit the crime, state laws vary. Depending upon the jurisdiction in which the charge is being prosecuted, the court will apply one of the following two tests to determine whether entrapment occurred:
- Subjective Test: Whether the actions of the police induced the defendant to commit a crime, taking into consideration the defendant's state of mind.
- Objective Test: Whether the police conduct would have caused or induced any law-abiding person to have committed the crime with which the defendant is charged.
It is more difficult to prove entrampment under the objective test, as the defendant's personal vulnerabilities and state of mind are not relevant to the court's determination of whether or not entrapment occurred. While the subjective test considers whether the police exploited a weakness or vulnerability of the defendant, the objective test instead examines how an ordinary, law-abiding citizen would respond to a similar enticement.
Sometimes after being ticketed for speeding, a driver will want to claim entrapment. The most common examples are:
- The officer's location: The driver will argue that the officer was monitoring traffic from an inappropriate location, such as being improperly parked on private property without the owner's permission, when the officer observed the conduct that resulted in the ticket;
- The officer's driving conduct: The driver will argue that the officer approached from behind at a high rate of speed and that they accelerated above the speed limit only in response to the officer's approach.
Neither of those scenarios will support an entrapment defense.
In the first scenario, if it is true that an officer was improperly parked at the time of a driver's traffic offense, the officer's position did nothing to induce the offense, nor did it affect the driver's decision to commit the traffic offense. Officers are allowed to park where it is difficult to see their vehicles.
In the second scenario, as a matter of routine, drivers will encounter other drivers who are operating their vehicles at speeds that are above the posted speed limit, or are otherwise potentially dangerous. They are nonetheless expected to follow the rules of the road. If a driver truly believes that a vehicle approaching from the rear poses a risk of imminent physical danger, and it is not possible to simply let that vehicle pass, the proper defense to raise would be that of duress, not entrapment.