Fundamentals of Criminal Law by Adam J. McKee

This content is released as a draft version for comment by the scholarly community.  Please do not distribute.

Nearly every state has a code section that makes entrapment an affirmative defense. Entrapment occurs when an agent of the state induces the commission of an offense by using persuasion likely to cause a normally law-abiding person to commit the offense. Merely providing an opportunity to commit a crime doesn’t qualify for the defense.  The Arkansas statute, for example, specifically states that conduct “merely affording a person an opportunity to commit an offense” does not meet this standard. For it to be entrapment, the officer must “talk the person into” committing the crime.

Where the Government has induced an individual to break the law and the defense of entrapment is at issue, the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by government agents.  This isn’t as difficult as it sounds under the conditions of common undercover operations where officers merely provide an opportunity to commit a crime, such as buying drugs or soliciting prostitution. Usually, the ready commission of the criminal act amply demonstrates the defendant’s predisposition.   Law enforcement officials go too far when they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.

Under the ancient common law, no real limit was placed on the government’s capability to induce individuals to commit crimes. The U.S. Constitution does not expressly prohibit this questionable governmental conduct.  Today, every state and the federal criminal code prohibits the government’s use of inappropriately persuasive tactics when ensnaring offenders. Entrapment statutes tend to focus on the origin of criminal intent. If the criminal intent originates with the government (law enforcement), the defendant is entrapped and can assert the defense. If the mens rea, on the other hand, originates with the defendant, then the defendant is acting independently and can be convicted of the offense. Entrapment statues can be divided into two broad categories, depending on the type of test the statute employs.   The two tests of entrapment are subjective entrapment and objective entrapment. The federal government and the majority of the states recognize the subjective entrapment defense.

With the subjective entrapment defense, law enforcement pressures defendants to commit crimes against their will.  The subjective test focuses on the defendant’s personal qualities more than on law enforcement’s behavior. If the facts indicate that the defendant is predisposed to commit the crime without law enforcement pressure, the defendant will not win with the defense.  The primary question asks whether the defendant was inclined to commit the crime before any involvement by law enforcement. A defendant’s criminal record is not usually admissible in a criminal trial. When a subjective entrapment defense is raised, however, the defendant’s criminal record is admissible if relevant to prove the defendant’s criminal predisposition. Generally, law enforcement can furnish criminal opportunities and use decoys and the like without crossing the line into entrapment.  

The objective entrapment defense focuses on the behavior of law enforcement, rather than that of the defendant. If law enforcement uses tactics that would induce a reasonable, law-abiding person to commit the crime, the defendant can successfully assert the entrapment defense in an objective entrapment state. The objective entrapment defense focuses on a reasonable person, not the actual defendant, so the defendant’s predisposition to commit the crime is not relevant.  Therefore, in states that recognize the objective entrapment defense, the defendant’s criminal record is not admissible to disprove the defense.

The more complex and protracted the government inducement, the more likely a defendant will be to prevails when using an entrapment defense.  As the court stated in Jacobson v. United States, “In their zeal to enforce the law, Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.”  The court further stated that “On the other hand, the strong arguable inference is that, by waving the banner of individual rights and disparaging the legitimacy and constitutionality of efforts to restrict the availability of sexually explicit materials, the Government not only excited Jacobson’s interest in material banned by law but also exerted substantial pressure on him to obtain and read such material as part of the fight against censorship and the infringement of individual rights.”  This statement suggests that the government’s appeal to higher ideas was a form of pressure to act, and that this went too far.

Modification History

File Created:  07/17/2018

Last Modified:  05/03/2021

[ Back | Content | Next]

This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

Open Education Resource--Quality Master Source License


Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Doc's Things and Stuff uses Accessibility Checker to monitor our website's accessibility.