Entrapment can be used as a defense if you are charged with a crime because a law enforcement officer induced you to commit the crime. The law enforcement officer will generally use threats, fraud or other extreme behavior as coercion.

However, in order to successfully use this defense, you have to show resistance to the temptation of committing the crime. If a law enforcement officer merely presents you with an opportunity to commit a crime and you comply, the defense will not be available.

Thus, to successfully raise an entrapment defense you must prove that you were not inclined to commit the crime before you were coerced into doing so by the law enforcement officer.

Will the Availability of an Entrapment Defense Depend What State I Live in?

There are two tests that courts have used to determine whether entrapment can be used as a defense: the objective test and the subjective test. The states are split on which test to use.

Under the objective test, courts will look at whether a reasonable person who follows the laws would have been induced by the law enforcement officer’s actions. If the defendant can prove by a preponderance of the evidence that they were entrapped by law enforcement, the defendant will be acquitted.

This test is generally more favorable to defendants, because it does not focus as much on the individual defendant. Instead, it is primarily aimed at putting an end to police misconduct. Under the subjective test, courts will look at the defendant’s state of mind.

The main focus will be on whether that particular defendant was predisposed to commit the crime in the first place. In a subjective test jurisdiction, the burden shifts to the prosecution to show beyond a reasonable doubt that the defendant had the required mental state to commit the crime.

Thus, it is harder to raise this defense under the subjective test because it is more fact specific and also aims on punishing the defendant for wrongdoing, regardless if coercion occurred.

When is Entrapment Unavailable as a Defense?

Just as with any defense, there are certain situations where the defense is unavailable. For entrapment, this list includes:

  1. You came up with the idea to commit the crime. For example, if you approached an undercover law enforcement officer to buy drugs you cannot argue entrapment.
  2. The law enforcement officer merely provided you the opportunity to commit the crime without any coercion.
  3. You were already planning to commit the crime before you were engaged by the law enforcement officer.
  4. You were coerced to commit the crime by a private citizen not under law enforcement control. However, you should keep in mind that if you were coerced by an individual under the control of law enforcement officer, entrapment may still be available as a defense. Law enforcement will sometimes use agents who are not actually police officers in order to make the “sting operation” more convincing.

Do I Need to Contact an Attorney?

If you have been charged with a crime and believe you have been the victim of entrapment, you should contact a criminal defense lawyer to represent you in court.

An attorney can analyze your case and let you know if the entrapment defense is available based on the situation and the test that your jurisdiction applies.