What Is Entrapment? A Defense Against Manufactured Crime

In the theater of criminal justice, the concept of entrapment often emerges as a critical, yet frequently misunderstood, defense. It addresses a fundamental ethical question: when does aggressive law enforcement investigation cross the line into the actual manufacturing of a crime? Entrapment is a complete defense to a criminal charge, rooted in the idea that government agents should not originate a criminal design, implanting the disposition to commit a crime in an otherwise innocent person’s mind, and then induce the commission of that act for prosecution.

It is crucial to understand that simply being presented with an opportunity to commit a crime—such as a standard “sting operation”—does not constitute entrapment. For the defense to succeed, the defendant must generally prove two fundamental and related elements which form the basis of the defense:

1. Government Inducement: The law enforcement agent or their informant persuaded or induced the defendant to commit the crime.
2. Lack of Predisposition: The defendant was not otherwise ready and willing to commit the crime before the government’s intervention.

The Two Pillars of Entrapment: Inducement and Predisposition

1. Government Inducement

Inducement is the threshold issue for the entrapment defense. It requires the defendant to show that the government’s conduct went beyond mere solicitation. Law enforcement is permitted to use artifice, stratagem, and undercover operations to afford an opportunity to a defendant to commit an offense.

True inducement, in the legal sense, requires a showing of something more significant, such as:

• Excessive pressure or mild coercion.
• Appeals based on sympathy, friendship, or need.
• Extraordinary promises of gain “that would blind the ordinary person to his legal duties”.
• Threats or harassment (though this often overlaps with the separate defense of ‘Outrageous Government Conduct’).

2. Lack of Predisposition (The Subjective Test)

In federal courts and most U.S. jurisdictions, the defendant’s lack of predisposition is the most important element of the defense—this is known as the Subjective Test.

The predisposition inquiry asks whether the defendant was an “unwary innocent” or an “unwary criminal who readily availed himself of the opportunity”. The focus is on the defendant’s mental state before the government first approached them. If the government can prove the defendant was ready and willing to commit the crime without their persuasion, the defense fails.

Evidence used to prove or disprove predisposition can include:

Predisposition Evidence Factors

Evidence for Predisposition	Evidence for Lack of Predisposition
Prior involvement in similar criminal activities.	Initial reluctance or repeated refusal to commit the act.
Eagerness or ready response to the inducement offer.	Lack of prior criminal record for the charged offense.
Demonstrated expert knowledge or contacts in the criminal activity.	The government’s repeated and aggressive solicitation over time.

State vs. Federal Standards: Subjective vs. Objective

While the Subjective Test is dominant in federal court, a minority of state jurisdictions, such as California, have adopted the Objective Test.

• Subjective Test (Federal): Focuses on the defendant’s mind (predisposition). The jury must determine if the defendant was predisposed to commit the crime, regardless of whether the government’s conduct was outrageous (unless it rises to a Due Process violation).
• Objective Test (State Minority): Focuses entirely on the government’s conduct. It asks whether the actions of the law enforcement agent were “likely to induce a normally law-abiding person to commit the offense”. Under this test, the defendant’s prior criminal record or predisposition is irrelevant.

The Related Defense of Outrageous Government Conduct

In rare instances, police conduct can be so egregious that it violates a defendant’s due process rights under the Constitution, regardless of whether they were predisposed to commit the crime. This separate defense is often called “Outrageous Government Conduct” and has been recognized by the Supreme Court in cases like United States v. Russell and Hampton v. United States. While the entrapment defense focuses on the defendant’s state of mind, this due process defense focuses solely on the nature of the government’s overreaching behavior.

Summary: Key Takeaways on Entrapment

1. Entrapment is a defense that alleges law enforcement induced or persuaded a person who was not predisposed to commit a crime.
2. The federal standard uses the Subjective Test, centering on the defendant’s lack of predisposition prior to government contact.
3. Mere solicitation or providing an opportunity in a “sting operation” is not enough to prove entrapment; there must be evidence of excessive pressure or undue appeal (inducement).
4. Some states use the Objective Test, which focuses on whether the law enforcement conduct would induce a normally law-abiding person to commit the offense.
5. Successfully raising this defense often requires the assistance of a skilled Legal Expert to gather evidence of government coercion and demonstrate a lack of prior criminal intent.

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Frequently Asked Questions (FAQ)

Q: Is a “sting operation” automatically considered entrapment?

A: No. A law enforcement sting operation that merely provides an opportunity for a person to commit a crime they were already willing to commit is *not* entrapment. Entrapment occurs when the agents use coercion, threats, or extraordinary manipulation to manufacture the criminal intent in a non-predisposed person.

Q: What is the “Predisposition Test”?

A: The Predisposition Test is the core of the Subjective Entrapment standard used in federal court. It asks whether the defendant was “ready and willing” to commit the crime *before* the government agent induced them. If the defendant was already predisposed (an “unwary criminal”), the defense fails.

Q: Can a private citizen entrap someone?

A: No, legally, entrapment can only be committed by government agents, such as police officers, or a confidential informant acting under their direction. Private individuals cannot raise or induce the defense of entrapment.

Q: If I use the entrapment defense, do I admit to the crime?

A: Generally, yes. Entrapment is an affirmative defense, meaning you are essentially admitting to the criminal act but claiming you should be excused because the criminal design was unlawfully implanted by the government. However, the Supreme Court has allowed defendants in federal cases to raise the entrapment defense while also contesting the elements of the crime.

Disclaimer and Closing

Understanding the intricacies of the entrapment defense is vital for anyone facing criminal charges that involve undercover operations. If you believe your rights were violated by law enforcement conduct, seeking prompt advice from a criminal defense Legal Expert is the most critical step you can take.

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