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Entrapment as an Affirmative Defense to Criminal Charges

FBI Entrapment“Entrapment” may be a defense to criminal prosecution if a government agent induced a person to commit a crime which the person was otherwise unlikely to commit.

Investigation and prosecution of certain crimes can be difficult unless members or agents of law enforcement participate in elements of the prohibited activity.  Examples are drug sales, prostitution or gambling.  A defendant, who is prosecuted when law enforcement has been involved during the course of criminal conduct, often asserts a defense of entrapment. The defendant argues he would not have committed the crime without law enforcement’s participation.

Investigating “Victimless” Crimes

Many crimes have no victims in the classic sense.[1] The drug seller and buyer, the john and the prostitute, and the gambler and bookie willingly participate together in an activity that has been declared illegal.[2] To police these matters government agents often work in an undercover capacity. Investigations of serious felonies or misdemeanors upsetting the public peace employ this tool.

Undercover agents or their confidential informants seek out individuals involved in these activities and participate. This can be an effective law enforcement tactic. Problems arise when individuals who were not otherwise inclined to break the law do so with law enforcement aid or encouragement. This becomes entrapment.

Entrapment:  An Affirmative Defense

Entrapment is an affirmative defense.  When a person accused of a crime admits that he performed an act prohibited by law, but argues that his conduct is excused based upon a specific legal principle.  In asserting an entrapment defense, an individual admits he committed a crime, but claims he did so because he was enticed to do so by an agent of the government.

A person is ‘entrapped’ when induced or persuaded by law enforcement or its agents to commit a crime that he had no previous intent to commit. In a case when the entrapment defense is successful, the defendant is found not guilty.

Government Provided Opportunity Alone Is Not Entrapment

A person, who is ready and willing to break the law when government agents provide an opportunity for crime, is not considered entrapped.  A defendant cannot assert a successful entrapment defense if he was ready, willing and able to commit the crime charged when the possibility presented itself, as long as law enforcement did no more than offer an opportunity.

Four Elements to Successfully Asserting an Entrapment Defense

The entrapment defense to criminal activity is available if:

  1. The initiation of criminal conduct came from law enforcement and not from the person accused of the crime.
  2. Law enforcement then persuaded the person to commit the crime. Presenting the opportunity to commit a crime is not the same as persuading him to commit the crime.
  3. The accused was not ready and willing to commit the crime before being approached by law enforcement.
  4. Once a defendant raises the issue of entrapment, the government must be unable to prove that the defendant was not entrapped beyond a reasonable doubt.

Should a defendant’s entrapment defense fail on any one of the four elements, he is legally guilty of the crime charged.

Subjective Entrapment vs. Objective Entrapment

There are two theories of entrapment and the law varies among the states. The majority of the states employ a subjective test. This test is whether a specific defendant charged with a crime had a predisposition to commit the crime without the participation of law enforcement. Among the factors used to measure predisposition include prior criminal history, age and educational level.

A minority of the states employ an objective test. This test focuses on the events, and whether the average law abiding citizen would have participated in the criminal activity. This test examines law enforcement’s conduct measuring whether that conduct was designed to catch only those ready and willing to commit a crime.

In federal court, a valid entrapment defense has two related elements: (1) government inducement of the crime, and (2) the defendant’s lack of predisposition to engage in the criminal conduct. Mathews v. United States, 485 U.S. 58, 63 (1988) and United States v. Jacobson, 503 U.S. 540 (1992).

Entrapment:  A Successful Defense?

Though it would appear that participation of law enforcement would nearly always give rise to a claim of entrapment, it is rarely a successful defense.[3] It is usually successful for defendants who have little or no criminal history, young or unsophisticated and with low levels of formal education. It is very difficult to successfully escape criminal penalties by saying “The government made me do it.”


[1]    In terms of criminal activity, the “victim” of a crime is a person upon whom an injury was inflicted without permission.  A crime victim as discussed here is a particular person suffering a personal harm done by another.

[2]   In the examples given, drug buyer/seller, john/prostitute and gambler/bookie, some participants might be considered “victims” in a different sense, such as an addiction or a life situation.  In relation to the acts involved in the examples, both parties have decided to take part willingly at that moment, whatever the reason. There may be “victims” of the conduct removed from the criminal activity such as the state that is deprived of tax revenues it might have gotten had the gambler engaged in his bet with an Off Track Betting facility approved by the state.  “Victim” can have multiple meanings.

Since September 11,2001, the FBI has used confidential informants to investigate potential terrorist activities.  Some contend many defendants charged as a result of these investigations were in fact entrapped.

[3]   As an aside, though an entrapment defense may not often be successful in a trial, when the facts of a case reveal law enforcement involvement in a crime, the possibility of asserting an entrapment defense may have an effect on plea bargain discussions.

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