Investigation and prosecution of certain crimes can be difficult unless members or agents of law enforcement participate in elements of the prohibited activity. Examples are drug sales, prostitution or gambling. A defendant, who is prosecuted when law enforcement has been involved during the course of criminal conduct, often asserts a defense of entrapment. The defendant argues he would not have committed the crime without law enforcement’s participation.
Investigating “Victimless” Crimes
Many crimes have no victims in the classic sense.[1] The drug seller and buyer, the john and the prostitute, and the gambler and bookie willingly participate together in an activity that has been declared illegal.[2] To police these matters government agents often work in an undercover capacity. Investigations of serious felonies or misdemeanors upsetting the public peace employ this tool.
Undercover agents or their confidential informants seek out individuals involved in these activities and participate. This can be an effective law enforcement tactic. Problems arise when individuals who were not otherwise inclined to break the law do so with law enforcement aid or encouragement. This becomes entrapment.
Entrapment: An Affirmative Defense
Entrapment is an affirmative defense. When a person accused of a crime admits that he performed an act prohibited by law, but argues that his conduct is excused based upon a specific legal principle. In asserting an entrapment defense, an individual admits he committed a crime, but claims he did so because he was enticed to do so by an agent of the government.
A person is ‘entrapped’ when induced or persuaded by law enforcement or its agents to commit a crime that he had no previous intent to commit. In a case when the entrapment defense is successful, the defendant is found not guilty.
Government Provided Opportunity Alone Is Not Entrapment
A person, who is ready and willing to break the law when government agents provide an opportunity for crime, is not considered entrapped. A defendant cannot assert a successful entrapment defense if he was ready, willing and able to commit the crime charged when the possibility presented itself, as long as law enforcement did no more than offer an opportunity.
Four Elements to Successfully Asserting an Entrapment Defense
The entrapment defense to criminal activity is available if:
- The initiation of criminal conduct came from law enforcement and not from the person accused of the crime.
- Law enforcement then persuaded the person to commit the crime. Presenting the opportunity to commit a crime is not the same as persuading him to commit the crime.
- The accused was not ready and willing to commit the crime before being approached by law enforcement.
- Once a defendant raises the issue of entrapment, the government must be unable to prove that the defendant was not entrapped beyond a reasonable doubt.
Should a defendant’s entrapment defense fail on any one of the four elements, he is legally guilty of the crime charged.
Subjective Entrapment vs. Objective Entrapment
There are two theories of entrapment and the law varies among the states. The majority of the states employ a subjective test. This test is whether a specific defendant charged with a crime had a predisposition to commit the crime without the participation of law enforcement. Among the factors used to measure predisposition include prior criminal history, age and educational level.
A minority of the states employ an objective test. This test focuses on the events, and whether the average law abiding citizen would have participated in the criminal activity. This test examines law enforcement’s conduct measuring whether that conduct was designed to catch only those ready and willing to commit a crime.
In federal court, a valid entrapment defense has two related elements: (1) government inducement of the crime, and (2) the defendant’s lack of predisposition to engage in the criminal conduct. Mathews v. United States, 485 U.S. 58, 63 (1988) and United States v. Jacobson, 503 U.S. 540 (1992).
