Entrapment

The act of government agents or officials that induces a person to commit a crime he or she is not previously disposed to commit.

Entrapment is a defense to criminal charges when it is established that the agent or official originated the idea of the crime and induced the accused to engage in it. If the crime was promoted by a private person who has no connection to the government, it is not entrapment. A person induced by a friend to sell drugs has no legal excuse when police are informed that the person has agreed to make the sale.

The rationale underlying the defense is to deter law enforcement officers from engaging in reprehensible conduct by inducing persons not disposed to commit crimes to engage in criminal activity. In their efforts to obtain evidence and combat crime, however, officers are permitted to use some deception. For example, an officer may pretend to be a drug addict in order to apprehend a person suspected of selling drugs. On the other hand, an officer cannot use chicanery or FRAUD to lure a person to commit a crime the person is not previously willing to commit. Generally, the defense is not available if the officer merely created an opportunity for the commission of the crime by a person already planning or willing to commit it.

The defense of entrapment frequently arises when crimes are committed against willing victims. It is likely to be asserted to counter such charges as illegal sales of liquor or narcotics, BRIBERY, SEX OFFENSES, and gambling. Persons who commit these types of crimes are most easily apprehended when officers disguise themselves as willing victims.

Most states require a defendant who raises the defense of entrapment to prove he or she did not have a previous intent to commit the crime. Courts determine whether a defendant had a predisposition to commit a crime by examining the person's behavior prior to the commission of the crime and by inquiring into the person's past criminal record if one exists. Usually, a predisposition is found if a defendant was previously involved in criminal conduct similar to the crime with which he or she is charged.

When an officer supplies an accused with a tool or a means necessary to commit the crime, the defense is not automatically established. Although this factor may be considered as evidence of entrapment, it is not conclusive. The more important determination is whether the official planted the criminal idea in the mind of the accused or whether the idea was already there.

Entrapment is not a constitutionally required defense, and, consequently, not all states are bound to provide it as a defense in their criminal codes. Some states have excluded it as a defense, reasoning that anyone who can be talked into a criminal act cannot be free from guilt.