What is Entrapment? Definition and Framework
Entrapment in law refers to the act of tricking or coercing a person into committing a crime they would not have otherwise committed. In its simplest legal terms, the concept of entrapment relies on two key definitions: one, that the crime has been committed, and two, that the means or motive behind the crime was not of the defendant’s own volition.
For example, say a defendant in a theft case receives a text message from an unknown source saying their friend had just lost the "rare Xbox Titan Edition" that the sender is willing to let go for just a few hundred dollars. The defendant is intrigued and jokes with the sender about making the purchase, possibly thinking it’s an old joke from their friend or even thinking it’s the real friend who had lost the Xbox.
Later, the defendant would receive a second text from this same number saying they were drunk at the moment they had lost the beloved device. They crave the Xbox back and are willing to pay double what they had originally lost. This, too, seems like a harmless joke. Then the defendant receives a third and fourth text, again from the same number, stating the sender is outside watching and would be willing to help the defendant retrieve the Xbox if they come outside.
At this point, the defendant might still think it’s a joke from their friend or just some wacky prank. Much darker thoughts of this situation going south should be entering their minds at this point, as suddenly the sender has moved from a harmless "friend" to a potential creep or worse. They also don’t seem to be buying the drunk Xbox story because the sender’s texts have zero typos and horrible grammar for someone who is inebriated.
Then the defendant receives a phone call. It’s a real live person who sounds sober. In fact, they sound super sober. And then the now-live person tells the defendant that they are hiding in their bushes (which, as it turns out, are the bushes in front of the defendant’s home) and that they really want to know what the defendant thinks about the offer.
By now the defendant should probably have a better idea of the situation. If they truly think the other person is lying about their identity , they should not be like the guy in this video and actually walk outside where the shady person is waiting. They should not even open the front door. But let’s pretend that the defendant in this situation is stupidly curious. Then the conversation continues…
"Look, dude," the shady person says, "I’m about to leave with your friend if you don’t come outside and meet me. I’ll even let you pick up the Xbox for free if you’re too scared to shake my hand. And if you do it fast, I won’t even have to kill your friend. We can both just get inside the car and leave."
As this point, the defendant should have clearly forgotten that this is an Xbox attached to whatever deep emotional connection he had with this particular object. He should know that he was being trained by this point. He should know not to go outside. And yet, stupid curiosity wins out and the defendant walks outside where the shady person is waiting. And that’s when the defendant is confronted with the fact that they’ve been caught red handed. They’ve stated, either directly or indirectly, that they were going to kill the other person, whether or not they believed the sender to be their friend. Again, they know better. They know they’ve been set up.
This is what entrapment is all about. The methods by which legal professionals have arrived at this scenario have been extraordinarily elaborate and, thankfully, rare, and specific cases have helped define entrapment more clearly. In short, violence, threats of violence, and illicit drugs are three great levers by which legal professionals can establish that entrapment has taken place, depending upon the agreement.
The idea of entrapment is a double-edge sword by nature. The law recognizes the need for police to openly ask people if they want to buy or participate in illegal activity. But the law also recognizes that those actions alone do not constitute a crime. And even after the police have established that a crime was about to take place as a result of their actions, it may be argued that the police tricked or coerced someone into crimes that they would never have committed without police escalation.
Foundations and History of Entrapment Theory
Historically, the genesis of the entrapment defense traces back to the 17th century. At that time, an English court addressed a case in which it stated that "the king must not be allowed to seek the aid of the devil or to offer temptations to people in order to obtain convictions." R v. Sheppard, 1690, 2 Vent. 135, 86 E.R. 904 at 905, as cited in United States v. Fadel, 2011 U.S. App. LEXIS 14856, 2011 WL 3572540 (7th Cir. Aug. 16, 2011). In the 1884 case of Rex v. Wylie, the Supreme Court of Canada ruled that the 1690 Sheppard case established that an undercover government agent may engage in behavior that could lead a person to commit a crime, as long as that agent does not "suggest the idea of the act." As such, this would not constitute entrapment, the Court would go on to rule. R v. Wylie, [1884] 10 Can. Crim. Cas. 200 (Que. K.B.).
Even so, early U.S. courts largely ignored entrapment, and it was not until the 1920s that the concept began capturing the attention of the American judiciary. The U.S. Supreme Court ultimately began allowing the doctrine to influence its judgments. For instance, in Perez v. United States, 137 F.2d 512 (1943), the Court ruled that the prosecution may be held responsible for entrapment phrases committed by engender of air and that such charges may be dismissed. Id., 137 F.2d at 515. This was the first time the Court extended the doctrine’s protections beyond the realm of law enforcement and criminal law; however, it did so in a minor way.
It wouldn’t be until 1956 that the Supreme Court directly addressed law enforcement agencies specifically using the power of the state to commit entrapment. In Sherman v. United States, a drug user who engaged in selling drugs to support his own habit was approached by an undercover agent. After becoming friends, the agent fed the suspect’s addiction through his buyer and then brought him together with a dealer, hoping to arrest the buyer and expose the dealer’s operation. The Court ruled that officials had solely instigated the alleged crime, and thus was in violation of the entrapment doctrine. Sherman v. United States, 356 U.S. 369, 373 (1958).
Over the years, courts have increasingly limited the scope and breadth of the entrapment defense. Closed to the government’s suggestion of criminal activity may be determined in multiple different ways, as illustrated in Hampton v. United States, 425 U.S. 484 (1976). Here, the Court found the defendant entrapped with the help of the Federal Bureau of Narcotics (FBN), and that although an undercover agent facilitated the criminal act, that person did not perpetrate the crime. The Court rejected the entrapment defense on the grounds that, with the introduction of heroin into the streets, possible users or buyers were easily susceptible to temptation. The action of agents would thus not affect the validity of the apprehension. Id., 425 U.S. at 490.
For many courts, this statement denoted the end of entrapment information as a viable defense, sometimes citing their decisions as "futile"; however, the Supreme Court, lets nineteenth century doctrine highlights, stated that there is no constitutional provision providing for the entrapment defense. At the same time, it treats it as critical, leaving courts free to use it in their judgment. Ibid.
Eventually, in 1974, Evidence Rule 704(b) was promulgated under the heading "Insanity Defense: Mental Disease or Defect." Fed. R. Evid., § 704(b). This forbids "expert testimony as to whether the accused did or did not have the mental state[,]…" but it did not expressly preclude the use of the defense. Ad Hoc Committee on Rule 704 of the Governing Board of the American Psychiatric Association and the Committee on the Diagnosis and Classification of Mental Disorders of the American Psychiatric Association, Proposed Revisions to Proposed Rules 702, 704, 705, and 707(b) of the Federal Rules of Evidence at 8 (1977); see also Don Greiner, Note, The Use of Expert Clinical Testimony in Insanity Defense Trials, 55 Iowa L.Rev. 653 (1970). In that light, the judiciary tends to follow the American Law Institute Model Penal Code (MPC) to fashion their entrapment defenses. Because of this, the doctrine is often implemented in accordance with the three principles that are set forth in the MPC; that the defendant was not predisposed to criminal activity; that law enforcement officials initiated the criminal act; and that the defendant was not persuaded to commit the offense by coercion, violence, threats, or other unlimited means that would compel his or her participation. See Model Penal Code §§ 2.01, 2.04(2)(a), (b) and cmt. 9 (Official Draft 1962).
Legal Standards for Entrapment Defense
Defendants attempting to assert an entrapment defense must satisfy the legal criteria set forth in their respective jurisdiction. This typically includes an objective evaluation of law enforcement’s conduct leading to the offense, as well as questioning whether the defendant was predisposed to commit the crime without government coercion. Courts will often focus on these two inquiries when determining the validity of an entrapment defense.
Next, federal courts should exercise the defense of entrapment more favorably than state courts, partly because defendants are entitled to the defense under federal law and partly because of their limited right to appeal a case once it is concluded.
Courts in the Third Circuit, which includes New Jersey, Pennyslvania, Delaware and the Virgin Islands, have considered defendants’ claims for the entrapment defense to be "rare and disfavored," finding it easier to establish wrongdoing by law enforcement than by private authorities. The Third Circuit has also stated that the entrapment defense requires clear and convincing evidence, a higher standard of evidence than is usually required of criminal defendants, albeit one that is lower than that of beyond a reasonable doubt. Common examples of entrapment include bribery, extortion, fraud and drug cases engaging in drug deals or prostitution where the defendant was not previously predisposed to do so.
The exceptions to an entrapment defense in the Third Circuit include where (1) the law enforcement agent engages in illegal activities that would likely not be committed by an ordinary citizen or (2) where this activity is planned or orchestrated by the agent and is not a spontaneous outcome of his or her actions, (3) where the agent encourages someone who is not predisposed to commit the crime to do so, or (4) where the agent provides encouragement or assistance to carry out the crime and is not separately required to prove predisposition.
Entrapment Tests: Objective and Subjective Distinctions
There are two primary tests for determining if entrapment is valid: the objective test and the subjective test. The objective test looks at whether the government activity in question would induce a reasonably strong, law-abiding person to commit it, putting the incentive aside from that provided by the government. In practice, this requires looking at the defendant’s defense, in order to determine whether he or she was induced into committing the crime because of a government behavior that would have similarly persuaded a regular citizen to do so .
The subjective test, on the other hand, asks if the defendant had a predisposition to commit the crime before being confronted with the government’s incentives, meaning that he or she "would have committed the crime regardless of government involvement."
In general, law enforcement uses more subjective entrapment as a defense in an effort to confirm the defendant’s guilt. It helps prosecutors to show that the individual being charged with a crime essentially had no choice but to do so, given the level of persuasion they were subject to. There are specific guidelines for proving subjective entrapment, and the prosecution must show that the defendant’s prior actions indicated that they were predisposed to commit the crime that they actually did commit.
Entrapment Case Studies: Real-Life Scenarios
There have been a number of notable cases regarding entrapment from the 1980s to the present. Among the earliest examples, a court held that the government could not use an undercover agent, known as Pampas, to sell 23 pints of illegal Mexican liquor or mezcal as a defense against the entrapment charge by an accused who himself was in the illegal business of selling mezcal. The court ruled that the accused Pampas had provided only legal mezcal and had not used threat of force or violence, and the liquor store owner was prepared to buy the mezcal whenever the Pampas handed it to him—there was no necessary suggestion of a crime, the court held.
In a California case in 1995, a 15-year-old girl in foster care was charged with possession of marijuana for sale after a police officer posed as a homeless person and offered to buy marijuana from her on several occasions. The juvenile court judge commented that "the undercover police officer had the capacity to urge, encourage and provoke the minor to commit a crime that she would not have committed but for the urging, encouraging and provoking of the undercover police officer." The judge found entrapment and dismissed the case.
These are just two in a long line of court decisions regarding entrapment, from both juvenile and adult defendants.
Impacts of Entrapment on the Criminal Justice System
Entrapment not only affects the accused. It also has broader implications for the criminal justice system. Law enforcement conducts complex undercover operations all the time, with the underlying assumption that they are allowed to do virtually anything to catch a criminal, including relying on confidential informants. However, there are concerns that the overwhelming use of undercover investigations and informants has begun to target minor offenses, rather than major crimes. For instance, the use of undercover personnel among schools has produced their share of controversy, since some people feel that these investigators target the youth for drug offenses. Further, critics argue that using informants in non-violent drug prosecutions is legally questionable. A national study reported by The New York Times found that more than half of juvenile drug arrests were facilitated by confidential informants. Dealing with marijuana in particular has been a controversial issue in this regard , since 30 states have legalized its use. In response to the problem of entrapment-related issues, states like Illinois have instituted more strict regulations regarding informants, limiting their abilities to facilitate arrests of minor drug offenses. Law enforcement officials have begun revising their approach to undercover work in general, as critics continue to challenge the legality of forcing civilians to participate in investigative acts. Agencies investigating drugs, racketeering, and other crimes associated with violence and organized crime will likely continue to rely on informants to produce prosecution results. At this time, it seems unlikely that investigators will face more restrictions on their activities, as they bring millions of prosecutions every year.