In order to understand the concept of entrapment, one must first understand the concept of asserting an affirmative defense in a criminal case. An affirmative defense is something that is raised by the defendant that has been charged with a crime in which the defendant introduces evidence to negate criminal liability. It is important to note that successfully raising an affirmative defense will negate criminal or civil liability, even if it is shown that the defendant did in fact commit the acts alleged.
Importantly, the party that raises an affirmative defense has the burden of proof in demonstrating that the specific affirmative defense applies to their case. Entrapment is an affirmative defense that may be raised by a defendant wherein the defendant alleges that a government official acquired the evidence necessary to charge them with a criminal act by inducing them to engage in the criminal act that they otherwise would not have committed.
It is also important to note that each and every state has their own set of criminal law statutes and case law that outlines when and how a defendant may assert the affirmative defense of entrapment.
However, in general, in order for a defendant to successful assert the affirmative defense of entrapment, the defendant will have to demonstrate:
- That the defendant had no intent to actually commit the crime; and
- That the government was the party that induced the defendant into committing the criminal act.
- Typically, the defendant can present evidence to demonstrate that they were induced in committing the crime by threats, fraud, or other extreme behavior by the government official.
Entrapment law is the set of criminal statutes and case law that concerns when entrapment is an applicable affirmative defense. Typically most entrapment affirmative defenses revolve around police entrapment. Police entrapment typically occurs when a law enforcement officer uses threats, frauds, or other behaviors to induce a person into committing a crime.
Once again, the defendant must prove they were not inclined to do the crime. This means that if the law enforcement office just presented them with an opportunity to commit a crime, the defense may not be applicable.
Common police entrapment examples include:
- Police pressuring a person to illegally sell them drugs by claiming that they would die without the drugs ;
- A law enforcement officer repeatedly harassing a person in order to get them to commit a criminal act for them;
- A law enforcement officer threatening them harm or to expose their private affairs if they do not commit a criminal act;
- Leading a person that is inclined to commit a criminal act to a more severe criminal act in order to get a greater punishment on that individual; and/or
- Guiding the person into a criminal situation, such as prostitution, through force or coercement.
Can You Sue for Entrapment?
In general, suing for entrapment is not typically an option. This is because law enforcement officers typically have a form of immunity to carry out their duties. However, when a law enforcement officer is grossly negligent and performs extreme behaviors to entrap a person into committing a crime, then the law enforcement officer will likely be deemed to have been operating outside their position.
In these cases, a person that was harmed by the actions of the police officer would sue them under the theory of negligence.
It is important to note that law enforcement is not above the law, and as such a victim of police misconduct does have the legal option to civilly sue the individual officer, supervisor, or the police department for their misconduct. In fact a common civil lawsuit against a police officer is due to harassment, wherein the person harmed by the police shows a pattern of behavior of an officer or department that constitutes police misconduct.
Will The Availability of an Entrapment Defense Depend on What State I Live in?
As mentioned above, whether or not entrapment is an applicable defense in a criminal case will depend on the laws that apply to that specific criminal case. For instance, if the individual that was charged with a crime was charged for violating federal law, then entrapment is available as an affirmative defense to those federal charges.
There are many instances in which a person could assert entrapment as a defense to federal government charges, such as the Federal Bureau of Investigation (“FBI”) or Drug Enforcement Administration (“DEA”) deceptively inducing a person into committing a criminal act or scheme. Federal courts recognize that a defendant may have been induced involuntarily to commit the act, especially when presented evidence that they were not predisposed to committing the crime.
When asserting entrapment as a defense for charges brought by a state prosecutor, the laws of that state, including the case law, will determine whether or not entrapment is applicable in the case. In general, there are two tests that state courts have used to determine whether or not entrapment is an applicable affirmative defense:
- The Objective Test: When utilizing the objective test, state courts will look at whether a reasonable person would have been induced to commit the crime by the police officer’s actions.
- The Subjective Test: The subjective test focuses on the defendant’s state of mind, rather than the act performed by the police.
- As such, when utilizing the subjective test, the main focus of the court is whether the particular defendant was predisposed to commit the crime in the first place.
- In subjective test jurisdictions, the burden shifts to the state prosecution to demonstrate beyond a reasonable doubt that the defendant had the required mental state to commit the crime.
When Is Entrapment Unavailable as a Defense?
Once again, when asserting entrapment defenses, whether or not the defense will be applicable will be dependent on the laws governing that specific criminal case. Similar to any other legal defense, there will be numerous situations in which entrapment is unavailable as a legal defense.
Examples of when entrapment is unavailable as a legal dense include:
- In situations where the defendant approached the government official with the idea to commit the crime originally.
- In these cases, the defendant may not assert entrapment, as they were predisposed to committing the crime in the first place;
- In cases where the law enforcement officer provided the opportunity to commit the crime, but did not induce the defendant;
- In cases where the defendant was already planning to commit a crime; an/or
- In cases where the defendant was coerced to commit a crime by a citizen, i.e. not a government official.
- It is important to note that if the citizen worked for a law enforcement official, then entrapment may still be available as a legal defense in these cases.
- For example, a law enforcement agent enlisting the aid of a private citizen for a sting operation.
Do I Need to Contact a Criminal Defense Attorney?
If you have been charged with a crime and believe that you were entrapped, then you should immediately consult with an experienced criminal lawyer. An experienced criminal attorney will be able to analyze your case and help you determine whether or not entrapment is an applicable legal defense.
Additionally, an attorney will be able to help you assert any other available legal defenses. Finally, an attorney will also be able to represent you at any in person criminal proceeding.