§ 13.01 Nature of Entrapment

 

Entrapment is not a constitutional doctrine.  It is a criminal law defense to police overreaching, recognized in all states and the federal courts.  In general, entrapment occurs when the defendant:

(1) was induced to commit the crime by a government agent (typically an undercover police officer); and

(2) would not have otherwise committed such crime.

 

Proof of entrapment varies according to whether the jurisdiction in which a case is pending applies the “subjective” test (majority approach) or the “objective” test (minority approach advocated by the Model Penal Code).

 

§ 13.02 Subjective Test

 

The subjective test focuses on the defendant's predisposition, if any, to commit the crime solicited by the government agent.  Sorrells v. United States, 287 U.S. 435 (1932).  A defendant need not be completely law-abiding in order to assert a defense of entrapment; a history of or predisposition to engage in unlawful activity unrelated to the crime at issue does not preclude the defense.

 

Entrapment requires more than that the government agent provided an opportunity to the defendant to commit the crime, and generally involves repeated and persistent solicitation.  See, e.g., Jacobson v. United States, 503 U.S. 540 (1992) (defendant who had purchased magazines that contained nude photographs of under-age males not depicting any sexual activity prior to the enactment of a federal law prohibiting the receipt of such materials, and who subsequently succumbed to more than two years of government solicitation to purchase child pornography, was not deemed to be predisposed to commit such crime).

 

Predisposition may be proved by demonstrating the defendant's ready complaisance to commit the crime, with evidence of, for example:

• the defendant's non-hesitancy to commit the crime.
• the defendant's ready knowledge of how to commit the crime.
• the defendant's comments prior to the commission of the crime that demonstrate his propensity to commit the crime.

 

Predisposition may also be proved by reference to the defendant's character in the community prior to the time the government approached him, e.g., evidence (which is otherwise generally inadmissible) of the defendant's bad reputation in the community and/or his prior criminal record, including arrests and convictions for related offenses.

 

In jurisdictions applying the subjective test, the issue of whether the defendant was entrapped is deemed a question of fact and is generally submitted to the jury.

 

§ 13.03 Objective Test

 

The objective standard focuses on police conduct rather than the predisposition of the defendant.  Under the objective test, the court considers the likely impact of the police solicitation on a hypothetical innocent person, not the actual defendant. The “hypothetical person” standard may take into account some of the characteristics of the actual defendant.

 

Model Penal Code § 2.13(2) provides that the entrapment defense should be submitted to a judge rather than to the jury.