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What Is Entrapment?
Entrapment is a criminal defense in which the police induce a person to commit a crime that he would not have otherwise committed. The defense assumes that an ordinary citizen would have resisted the temptation, but for some coercion or incentive by the police.
Can I Raise Entrapment as a Defense?
You can claim that you aren't guilty of a crime because you were an entrapment victim if:
- The idea for the crime came from the police officer and not from you. If you approach an undercover officer to try to buy drugs and are arrested, you are not a victim of entrapment.
- The police officer took some act to convince you to commit the crime. Just providing the opportunity to commit the crime does not constitute entrapment, the officer must persuade you in some way.
- You were not planning to commit the crime before the police officer encouraged you.
- A reasonable person would not believe that you were planning to commit the crime before the police officer encouraged you. Only applicable in some states.
If a Police Officer Lies to Me about His Identity, Is That Entrapment?
No. Police officers are lawfully permitted to lie while undercover. Thus, if you ask an undercover officer if he's a cop and he says no, you can’t claim entrapment on that fact alone.
What If the Person Who Led Me To Commit a Crime Is Not a Police Officer?
Police will sometimes use agents who are not actually law enforcement in order to make the “sting operation” more convincing to the people who are suppose to commit the crime. The police could also do it if they are just short on officers. These people can be volunteers or even criminal suspects looking for a way to mitigate their own sentences.
It does not matter who the police informant actually is. As long as the person attempting to entice or coerce you into committing a crime is under the control of law enforcement, entrapment can be raised.
Private citizens acting without police control, however, will not trigger an entrapment defense. The defense only applies to government action.
Does It Matter What State I'm In?
Yes. Jurisdictions are often split on whether to apply a “subjective” test to the entrapment defense or an “objective” test. The subjective test focuses on the defendant’s own state of mind, with the jury asked if the defendant had the personality and mental state to carry out the crime. The objective test, in contrast, looks at the conduct of the police and asks whether a reasonable person would have been lead to crime by the police’s scheme. Under the objective test, it does not really matter what the defendant believed. The former is about the defendant while the latter is focused on the conduct of the police.
The objective test is more likely to favor the defendant because the objective test is designed more to stop police misconduct than determining the defendant’s guilt. Indeed, proponents of the subjective test advocate punishing both the defendant and the police for wrongdoing rather than simply letting the defendant walk free.
The differences between the tests are reflected in what occurs at trial. Under the objective test, if the defendant shows “by a preponderance of the evidence” that he or she was entrapped, than the defendant will be acquitted. Law enforcement’s wrongful conduct will automatically invalid the charges.
Under the subjective test though, the defendant will not inevitably win. Instead, the burden shifts to the prosecution to show “beyond a reasonable doubt” that the defendant had the required mental state to commit the crime. Here the state is more interested in the defendant’s conduct.
You should check with an attorney to determine which test your state uses before raising the entrapment defense.
How Likely Is It I Will Succeed in Raising an Entrapment Defense?
To successfully raise an entrapment defense, you must prove that you were not inclined to commit the crime before you were coerced into it by the officer. As an affirmative defense, the defendant must raise the defense.
Whether or not you can prove this will depend on:
- Your criminal record (see article about how to "Clear My Record")
- Whether you committed the crime for profit
- The amount of reluctance to commit the crime you demonstrated
Do I Need a Lawyer?
If you believe you are the victim of entrapment, you should contact a criminal defense lawyer as soon as possible. A qualified criminal defense lawyer will help you determine if your defense is valid and defend you accordingly.
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Last Modified: 10-09-2014 08:26 AM PDT
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