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The Two Approaches To Entrapment

A division exists in the United States regarding the manner in which the entrapment defense should be applied. Most state courts, and the federal courts, use the so-called subjective test, which looks principally to the state of mind of the individual. These jurisdictions find the entrapment defense is based on a belief that legislators, in identifying criminal behavior in criminal codes, could only have intended to sanction individuals who would have committed a crime without the major inducement of government agents. The point of the subjective test, then, is to make sure that otherwise innocent persons will not be lured into criminal activity by government over-involvement. Because the evidence with respect to the particular individual defendant is the central theme of the entrapment, this form of the defense is viewed as subjective.

Other states, including some of the largest, such as California, Texas, and Michigan, use the so-called objective test. These jurisdictions reject the position of the subjective test proponents as to the legislative intent. Instead, the theory here is that the entrapment defense was created in order to impose responsible limitations on the actions of government agents in investigating and prosecuting criminal behavior. With this test, the courts scrutinize the level of government involvement in the criminal actions to determine if the officers acted in such a way that they would, in a usual case, affirmatively create crime where none would have existed without their actions. The individual state of mind of the defendant is not material in these states, hence the term objective is used.

One might well ask why similarly situated states—and the federal courts—can use such different applications of the entrapment defense. The answer is that most defenses in criminal cases are not constitutionally based; rather, they result from common law use or legislative enactment. As a consequence, states have been permitted under the U.S. Constitution to adopt whichever versions of criminal justice defenses are perceived as most appropriate. This difference in the adoption of defenses can be seen vividly with distinctive applications of the insanity defense, and even of self-defense. As to entrapment, the federal courts use the subjective approach, which results from judicial—rather than legislative—initiative. In some states, the legislature has enacted specific statutes covering the entrapment defense; in others, the defense has been developed, as in the federal courts, through judicial opinions.

The subjective test. As noted earlier, in the jurisdictions that utilize the subjective test, the key consideration is the defendant's state of mind. The principal question asks whether this individual was disposed to commit the crime before any involvement by the government. Still, in all jurisdictions following the subjective approach, in order to prevail the defendant must also show that a government agent induced him to commit the offense charged. If the defendant offers sufficient evidence of such inducement, the government must then demonstrate, beyond a reasonable doubt, that he was predisposed to commit the crime prior to the time of the government contact.

The inducement requirement for defendants is not often a major hurdle. Generally, the defendant has to prove more than the fact that an opportunity was offered by the government. It is not enough to show a mere request to buy or sell narcotics or stolen goods. The standard in most courts is that the evidence of inducement is high enough so that an innocent party in response to such government behavior might have engaged in illegal activities. One court wrote that the requirement is satisfied if the inducement creates "a substantial risk that the offense would be committed by a person other than one ready to commit it." Sufficient acts of inducement would include repeated requests by the government agent or a large financial incentive offered to the defendant.

Both in statutory form and in judicial practice, predisposition is the more difficult element. The government has to persuade the trier of fact that, even though it induced the defendant to act, the defendant was inclined to commit this sort of crime prior to such government contact. The proof problems regarding predisposition can be especially thorny, for the jury is being asked to evaluate an individual's state of mind before any crime was committed. The prosecution is given wide discretion in offering evidence of the defendant's predisposition. Similar crimes committed previously by a defendant are normally not allowed in evidence in a criminal prosecution to prove that person's guilt. The concern here is that the limited probative value of such earlier crimes will be outweighed by the undue weight jurors will attach to such prejudicial evidence. If, however, the defendant raises an entrapment defense, these prior acts generally are admissible. The defendant has challenged the government's proof as to her mental state, so the prior crimes help to indicate that the individual was predisposed to act unlawfully. Such prior crimes may include the purchase or sale of drugs, the ordering of obscene materials, or the commission of financial crimes.

The government may also demonstrate predisposition by offering proof that with a relatively modest inducement, the defendant responded eagerly and quickly to an offer to participate in a criminal action. This evidence, it is argued, shows that the defendant was inclined to act unlawfully, as she did not hesitate in response to the government agent's act of inducement or solicitation. Some judges, however, are less inclined to weigh heavily the ready response of the defendant. Instead, they look to whether the person had sufficient ability and experience on her own such that she not only would have attempted to commit the crime without the government involvement, but that she would likely have been successful in doing so. This debate over the evidence surrounding the defendant's response has not yet been resolved by the Supreme Court.

Questions regarding the subjective test for entrapment are normally argued to the jury. As a general matter, issues as to motive and intent traditionally are given to the jury throughout our criminal justice system. With the subjective approach to entrapment, the ultimate question of predisposition is seen as especially appropriate for jurors. In two instances, however, the matter will be resolved by the judge. The first involves the case in which the evidence of the defendant's state of mind is so certain that no reasonable person could conclude that the defendant lacked predisposition prior to the government contact. Even if the government inducement is heavy, there is no doubt of the defendant's great willingness to commit the offense as charged. In short, the evidence is so clear this person would have committed the crime without the governmental action that the judge should resolve this issue. To be sure, the Supreme Court has applied this doctrine in cases in which agents were active participants in the sale and purchase of illegal drugs, finding no entrapment because of the evidence of predisposition.

The second situation in which jurors will not decide the entrapment claim is quite different. If the judge concludes that no juror could find beyond a reasonable doubt that the defendant was predisposed, entrapment as a matter of law has been found and the prosecution must be terminated. The most famous Supreme Court decision evaluating evidence of entrapment dealt with the latter circumstance of entrapment as a matter of law. In this case, undercover U.S. postal investigators, over a prolonged two-year period, repeatedly wrote to the defendant criticizing the government's obscenity policy, encouraging the defendant to challenge the policy, and urging him to exercise his freedom of speech. Indeed, on numerous occasions, they explored with the defendant his interest in child pornography. When the agents finally made a concrete solicitation to send him pornographic materials through the mail, the defendant—a Nebraska farmer—immediately responded, and placed an order. The agents then mailed him the magazine and he was convicted of receiving illegal, obscene written matter through the federal mail system. The defendant raised an entrapment defense at trial, but the jury rejected it, presumably relying on his ready response to the ultimate solicitation. The Supreme Court, however, held that the case should have been dismissed, as there was insufficient evidence of criminal predisposition prior to the government's protracted and intense contact with the defendant. The defendant had never engaged in prior illegal activity, sexual written materials found in his home were legal when ordered, and it took more than a two-year period of inducement before any particular solicitation was offered. The Justices concluded that a reasonable doubt necessarily existed as to this person's alleged predisposition to commit unlawful acts. In addition, the Court was sharply critical of the postal undercover operation:

When the Government's quest for convictions leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the Court should intervene. (Jacobson v. United States, 503 U.S. 540, 553–54 (1992).

The objective test. The states that have adopted the objective test for entrapment do not look to the actions or motivations of the individual offender. Instead, they are far more concerned with the nature of the government's participation in the criminal endeavor. In these states, the entrapment defense is used to determine whether police conduct has fallen below standards for the proper use of law enforcement power. The question here, therefore, does not go to any one person's state of mind at any particular time. Rather, the test used is whether the government action would have caused "a normally lawabiding person to commit the offense." Some states in applying this test allow the judge to make the determination as a matter of law either during a trial, or at a pretrial hearing. Other states ask jurors to consider whether the behavior of the police was appropriate under the circumstances. In almost all states following the objective approach, the burden of proof is on the defendant, not the prosecution; the key question is whether the behavior of the government has demonstrated the need for the application of a strong public policy to deter instigation of crime by the government in order to get a conviction. Cases in which improper government action was found include excessive financial inducements, sexual favors given to the suspect, and exploitation of special emotional problems of the defendant. In such cases, the conclusion has been reached that the government simply has gone too far in creating crime rather than in detecting it.

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