Entrapment: “They Made Me Do It” Defense
The typical entrapment scenario arises when law enforcement use coercion or other tactics to induce someone to commit a crime. The entrapment defense is not applicable to private parties, IT ONLY APPLIES TO GOVERNMENT AGENTS. Oftentimes, defendants will have to prove they were not pre-disposed to the charged crime; “but for” law enforcement’s overbearing action(s) the defendant would not have committed the criminal offense.
However, it is not enough that law enforcement present the defendant with an opportunity to commit a crime; active solicitation by law enforcement is not sufficient. To successfully raise the entrapment defense the defendant must show that the government’s agents resorted to threats, harassment, fraud, or even flatteryto induce the defendant to commit the crime.
Below you will find some examples where the entrapment defense will and will not apply:
Example 1: Billy is charged with selling illegal drugs to an undercover police officer. Billy testified that the drugs were for personal use but decided the sell them to the undercover officer because the officer’s mother was in a lot of pain and needed some drugs. Before selling the drugs Billy asked the cop, “are you a cop?” The officer responded “no.” So, Billy went ahead and sold the drugs. The police officer’s conduct does not amount to entrapment. Officers are allowed the tell lies. Here, the officer simply gave Billy an opportunity to break the law, the officer did not engage in extreme or overbearing behavior.
Example 2: Billy is charged with selling illegal drugs to an undercover police officer. Billy testified that, “the drugs were for my personal use and for nearly 3 weeks the undercover police officer begged me to sell him my stash because his mom was really sick and needed the drugs for pain relief. I kept refusing. Then, after weeks of not selling the drugs, the undercover officer told me that the drugs would allow his mother to live comfortably for her last few days. I broke down and sold my stash.” Billy was then arrested. The undercover officer’s repeated requests will constitute overbearing conduct, and should result in a not guilty verdict because of the entrapment defense.
Remember: entrapment is an affirmative defense. Thus, defendants have the burden of proof to convince jurors it was more likely than not a government agent made the defendant commit the criminal act. However, the government is allowed to refute a defendant’s entrapment claim by showing: (1) the defendant’s active solicitation to commit the crime; (2) defendant’s prior criminal convictions; (3) defendant’s prior criminal activity not resulting in a conviction; (4) defendant’s criminal reputation, or (5) any other adequate means.