Criminal Law

Entrapment: How Far is Too Far for the Police?

By Thomas Seigel, Attorney and Former Federal Prosecutor
Learn how far an undercover agent can go when setting up a criminal incident. When is "too far," too far?

Entrapment is a defense to a criminal charge. Although many people think of all police undercover operations as “entrapment,” in fact law enforcement agents and informants may use false identities and deception in their undercover investigations. But there’s a limit: The entrapment defense is an important check on what police can do to make an arrest by enticing someone to commit a crime.

Typically, defendants raise an entrapment defense when they claim that an undercover agent or informant convinced them to commit a crime that they were not predisposed to commit. If a judge or jury finds entrapment, the defendant cannot be convicted.

The Legal Tests for Entrapment

Courts use one of two tests when deciding whether a defendant was entrapped:

  • The “objective” test. Some states ask whether the police conduct would have induced any law-abiding person to commit the crime. Here, the question is whether the police conduct in inducing the criminal act would have caused a reasonable person in the same circumstances to commit the crime, regardless of the specific mental state of the defendant. For example, assume an undercover agent asks someone to buy marijuana for that agent in a state where it is illegal. The agent says he wants the marijuana because he needs it to treat the side effects of chemotherapy. Because this type of inducement might cause anyone to commit the crime, the application of objective test would very likely result in a finding of entrapment, even if the defendant had a prior history of drug purchases for recreational reasons.
  • The “subjective” test. The majority of states and the federal courts apply a test that examines both the nature of the enticement and the defendant’s state of mind. When asserting this defense, defendants must show that they were induced to commit the crime and may have to weather the prosecutor’s attempts to show that they were predisposed to commit the crime. Let’s look more closely at the subjective test.

Proving Entrapment Under the Subjective Test: The Undercover Officer Was Insistent and the Defendant Was Resistant

The subjective test looks first at the police conduct, then turns its attention to the defendant’s predisposition (or not) to commit the crime charged.

Inducement

Inducing someone to commit a crime involves more than simply asking that person to commit it. Law enforcement can even lie about certain facts, by using false names, businesses, or associates. To prevail, defendants must usually show at least some persuasion or mild coercion. For example, an undercover agent might ask someone to commit a crime based on friendship, hardship, or a play for sympathy. If a judge or jury concludes that a defendant was pressured to commit a crime, they will likely find that the defendant has been induced. To establish inducement in most jurisdictions, a defendant will be required to show that it is more likely than not that he has been induced by law enforcement to commit a crime.

Predisposition

Defendants who have presented evidence that they were induced may not be home free just yet. While there must be inducement under the subjective test, the question of predisposition is usually the more important factor. Once inducement has been raised by the defense, the prosecutor has the burden to prove, beyond a reasonable doubt, that the defendant was predisposed to commit the crime. In other words, the government must demonstrate that the defendant was ready, willing and able—that his will to follow the law was not overcome by the inducement. For example, if the prosecutor can show that the defendant himself had previously proposed similar criminal acts to other people, the defense of entrapment will be extremely difficult to establish. But on the other hand, if the defendant has never engaged in (or even discussed) the proposed criminal act, the prosecutor may fail to establish predisposition. In short, when there is inducement and a lack of predisposition, the defendant has established the entrapment defense.

The Risk of Using an Entrapment Defense

Asserting an entrapment defense can have a real downside. By claiming entrapment, a defendant is essentially saying “I wouldn’t have done this if the government hadn’t made me.” By taking that position, you invite the prosecutor to respond with proof about your past. If the court believes that such evidence is a fair and relevant response, the jury will get to hear it. This potentially damaging evidence might otherwise not be admissible.

For example, the prosecutor may be able to call witnesses to testify that a defendant has participated in the same or similar criminal acts. Even evidence of preliminary discussions concerning proposed criminal activities with other people at other times might be offered by the prosecutor to show predisposition to commit the crime. Such evidence can have a significant impact on a jury’s opinion of the defendant.

Note, however, that a defendant’s prior criminal history will not always come up in an entrapment defense. If the previous criminal conduct is old enough or distinctive enough from the crime charged, evidence of that prior activity should not be admitted into evidence. For example, a defendant’s history of illegal gambling would be irrelevant to a case involving the solicitation of a prostitute.

The Entrapment Defense: Best Case Scenario

The best cases for an entrapment defense involve extremely persistent and manipulative efforts by law enforcement to get an otherwise law-abiding individual to commit a crime. Judges and juries look askance at repeated undercover badgering over a long period of time; or appeals to sympathy based on extraordinary circumstances, such helping a “close friend” obtain critical medical treatment or avoid financial ruin. And, there’s a limit to a court’s willingness to allow a misrepresentation about the law: If an undercover officer were to lie to an individual about the requirements of a particularly technical law in order to provoke a violation, a court could find entrapment under either the objective or subjective test.

In short, if the agent was insistent and the defendant was resistant, the entrapment defense might well be a viable legal strategy.

Questions to Ask Your Lawyer

  • How does my prior conduct and criminal history affect the advisability of an entrapment defense?
  • Can I file a civil lawsuit against a police department if a judge throws out a criminal charge against me based on entrapment?
  • Is it entrapment when an undercover officer poses as a teenager on a social networking site and posts sexually suggestive comments?
  • What should I do if I think an undercover police officer is acting inappropriately while investigating suspected crime in my business establishment?

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