Entrapment is a defense to a criminal charge. Defendants who raise an entrapment defense argue that they committed the crime because officers coerced or persuaded them to do it. Although an entrapment defense can be difficult to establish, when successful, it’s a complete defense to the crime.
What Is Entrapment?
The entrapment defense typically arises in cases involving undercover agents, which include not only police officers, but civilians working for law enforcement as informants (either for money or to get a plea deal in their own criminal cases). The agent poses as the defendant’s partner (or instigator) in crime. When agents urge defendants to commit crimes and use extreme methods to do so, defendants can argue entrapment—that the agent convinced them to commit a crime they wouldn't have committed otherwise, so they should not be found guilty. If a judge or jury finds entrapment, the defendant can’t be convicted.
Not All Interactions With Undercover Cops Are Entrapment
The classic entrapment scenario often involves a sting operation, where undercover agents are working to crack down on drug trafficking or other widespread criminal activity. Although many people think all police undercover operations are entrapment (because the agents lie to suspects and pretend to be their friends), usually, the agents’ dishonesty doesn’t preclude the prosecutor from bringing charges. At some point, however, enough is enough—the courts will not tolerate deception and false representations beyond a certain level. When that point is passed, defendants can prevail by bringing an entrapment defense. The entrapment defense is an important check on how far the police can go when they’re deceiving the people they’re investigating.
So, when does creative and permissible policing end and entrapment begin? Entrapment results when agents use extremely persistent and manipulative efforts to get an otherwise law-abiding person to commit a crime. A common tactic that’s likely to be entrapment is repeatedly appealing to the defendant’s sympathies, such as asking the defendant to commit the crime so the agent (or the agent’s friend or relative) can afford medical treatment or avoid financial ruin.
Example of Conduct That’s Not Entrapment
Undercover agent Narciso falsely befriends Morty, who’s been taking prescription opioids for years due to a back injury. One day, Narciso asks Morty to sell him a few pills and says they help him sleep better but his doctor won’t prescribe him any. Morty trusts Narciso and wants him to get a good night’s sleep, so he sells him a few pills and is promptly arrested. In this scenario, Morty won’t likely prevail on an entrapment defense because Narciso’s efforts were not repeated or reprehensible: He merely gave Morty the opportunity to commit a crime, and Morty took it.
Example of Conduct That Is Entrapment
In the example above, assume that when Narciso asks Morty to sell him some pills, he tells Morty he’s an opioid addict and is waiting for a spot to open at rehab. He says he has horrible withdrawal symptoms (which can make addicts very sick and are in some cases life-threatening). He tells Morty he just needs a few pills to get him through until rehab starts. Morty is sympathetic, but initially tells Narciso he can’t help because selling his prescription medicine is illegal. The next day, Narciso calls Morty and repeatedly begs for some pills to ease his (feigned) worsening sickness. When that doesn’t work, he shows up at Morty’s apartment sweating and shaking (having secretly run a long sprint before knocking on the door). When Morty sees Narciso in that state and hears him again begging for help, he finally agrees to sell Narciso some pills. In this situation, an entrapment defense has a good chance of success, because Narciso’s conduct was extreme and persistent. (However, if Morty was “predisposed” to commit the offense, he probably was not entrapped—see “The Subjective Test,” below.)
How Do You Prove the Police Committed Entrapment?
Entrapment is an “affirmative defense,” which means defendants have the burden at trial to prove they were entrapped. The test for entrapment varies from state to state. Although some states use an “objective” test,” most states and the federal courts use a “subjective” test. The basic difference is that the subjective test looks mainly to a defendant’s “predisposition” (already existing likelihood) to commit the crime, whereas the objective test looks primarily to police conduct.
The Objective Test
Under the objective test, entrapment exists when the police conduct would have induced any law-abiding person (not the defendant specifically) to commit the offense. Under that test, the defendant must prove that the police conduct would have caused a normally law-abiding person in the same circumstances to commit the crime.
The Subjective Test
The subjective test is more complex than the objective test, because the burden of producing evidence and proof shifts mid-way. When defendants are faced with the subjective test, they must prove that the police did something to induce the defendant to commit the crime. After defendants produce that evidence, the action shifts to the prosecution, who must prove that the defendant was predisposed to commit the crime.
At the end of the trial, the jurors will be asked to decide whether the defense proved inducement. If they conclude that it didn't, the entrapment defense will fail, and if the prosecutor has proved the offense beyond a reasonable doubt, the defendant will be convicted. But if the jurors conclude that the defense did prove inducement, they’ll be asked to decide whether the prosecution proved the defendant was predisposed to commit the crime. If they conclude “No” on predisposition, the entrapment defense will be established and the defendant won’t be convicted. A finding of “Yes” on predisposition means the entrapment defense will have failed, and the defendant will be convicted if the offense was proved.
Example of Entrapment Under the Subjective Test vs. the Objective Test
Assume that undercover agent Kristen falsely befriends Walter, and as their friendship deepens, she tells him that her house is going into foreclosure. She says she’s afraid she and her young children will be homeless soon. She asks Walter to help her with a plan to buy a large amount of drugs—just once—so she can sell them and pay her overdue mortgage. Walter tells Kristen it’s a bad idea and he doesn’t want to get involved. Kristen then initiates a sexual relationship with Walter, who quickly falls in love. Kristen repeatedly cries on Walter’s shoulder about the pending foreclosure and begs him to set up the drug purchase so she can save her children from homelessness. Walter finally agrees and buys the drugs for Kristen to sell.
In this situation, Walter can likely establish inducement—that the police used extreme and persistent methods to get him to commit the crime. In a state employing the objective test, this would be enough to prove entrapment. But in a state that uses the subjective test, Walter might still be on the hook. For example, if Walter was already active in the drug trade, or had prior convictions for drug sales, the prosecutor could introduce that evidence to show he was predisposed to commit the crime, which might defeat an entrapment defense.
Should You Use an Entrapment Defense?
Asserting an entrapment defense can have a downside. By arguing entrapment, a defendant is essentially saying, “I wouldn’t have done this if the government hadn’t made me.” By taking that position, defendants invite the prosecutor to respond with proof of their past. As shown in the above example, the prosecutor could call witnesses to testify that a defendant has previously planned, solicited, or participated in similar crimes. In addition to possibly defeating an entrapment defense, this kind of evidence can negatively affect a jury’s opinion of the defendant (which could also affect the jury’s verdicts on other charges or enhancements, if any—especially if the defendant’s credibility is an important part of the defense).
On the other hand, jurors could also disapprove of an officer’s unfair tactics. News reports and viral cell phone videos have made the public much more aware of police misconduct in all its forms. Jurors might be more sympathetic to defendants who are on trial solely because the police convinced them to commit a crime.
The decision of whether to raise an entrapment defense requires careful consideration and will depend on the specific facts of each case.
Talk to a Lawyer
If you’re facing criminal charges, consult with a lawyer right away. Be sure to choose a local attorney with several years of criminal defense experience. An experienced lawyer will know whether the entrapment defense or any other defenses will apply in your case.