You may have seen someone in a courtroom drama argue that they can’t be found guilty because it was all entrapment. For example, they may say that it was a setup by the cops, not an actual drug bust, so they can’t be found guilty of entrapment. But what does the word mean? And what are the implications if it was actually entrapment that led to criminal charge?
Entrapment means that someone is setting you up to be caught “red-handed”. For example, someone pretending to be an under-aged minor online who captures predators soliciting them for sex is an example of entrapment. The challenge is what they can do with that information other than report it to the police. This is legally questionable, since it is possible to manipulate screen shots of an online conversation to make it seem like someone did something wrong. That’s aside from the fact that they may take comments out of context in order to hurt their target. This is why police prefer to control the situation rather than rely on private citizen’s efforts to catch the supposed predator.
Entrapment by law enforcement is when the police or another government agency induces a law-abiding citizen to commit a crime they otherwise wouldn’t have. Note that you could be entrapped by local police, county sheriffs, and agents working for federal law enforcement agencies like the FBI.
The classic entrapment definition is “I was set up”. However, there is more to it than that. The definition of police entrapment is that you were “set up” by the police or a government agency rather than a private person. On the other hand, planting of evidence or coercing a false confession is not entrapment. These are crimes committed by the police, and there are other defenses available.
Another definition of entrapment is that you were forced to commit the crime. If you committed the crime under threats of violence or extended fraud, you can argue you were entrapped. In this case, the entrapment isn’t by the government but the party threatening or extorting you. However, if you’re induced to commit a crime by a private citizen, you cannot use the entrapment defense, though there are other defenses you can use.
Entrapment is generally the result of a sting operation. The classic example would be the faux drug dealer or prostitute. The opportunity to commit the crime is not inducement. The law says that you can only make use of the entrapment defense if you were coerced, tricked or manipulated into committing the crime. Buying drugs because the police ordered you to do so under threat of being arrested is entrapment. So, would doing what they wanted under threat of having your kids taken away if you didn’t follow orders would be entrapment. Police forcing you to drink too much alcohol and then arresting you for DUI would be entrapment, too. Voluntary acts like introducing undercover cops to friends who deal drugs as a condition of your plea bargain is not considered entrapment, unless you’re arrested for actions related to what cops ordered you to do.
Entrapment by citizen neighbors can occur, too. For example, a spouse who suspects cheating might hire an actress to pretend to be interested in you at your favorite bar. The encounter could be recorded by the actress or a private investigator. If you say yes to the suggestion to go back to their place, it becomes evidence that you’re likely cheating. That could be used against you in divorce court or simply lead to your partner filing for divorce.
Police are supposed to investigate reported crimes. There are thorny ethical and legal issues when they try to create situations so that they can catch or “entrap” would-be criminals. Psychological manipulation is a gray area. Repeated and unrelenting demands to commit the crime clearly cross the line. Cops paying you to commit the crime is clearly an example of entrapment.
A common misconception is that police entrapment is illegal. However, it is quite legal for law enforcement to use undercover officers to provide an opportunity to commit a crime. The classic example would be the undercover officer acting as a prostitute to capture potential “Johns”. Another example would be the narcotics sting. The police officer pretends to be a drug dealer and offers drugs for sale. The person who chooses to walk up and try to buy the drugs or pay for prostitution has provided evidence of that criminal activity and can be arrested for doing so. The issue is that there is a fine line between a legal and illegal entrapment by the police. And, unfortunately, entrapment in law enforcement that crosses the line is all too common.
Under the objective standards Texas uses, police are generally not allowed to push the issue. For example, they shouldn’t beg you to buy it so they can avoid being evicted from their home. They shouldn’t use pleas based on friendship or unusual offers to convince someone to take action they otherwise wouldn’t take. The courts have found that offering them inordinate sums of money to commit the crime is also considered entrapment. Police ordering someone to do something such as telling a 16-year-old to go in and buy cigarettes is entrapment. On the other hand, a ready and willing criminal is rarely considered to have been “entrapped”.
You can’t consider the person entrapped if they didn’t commit the criminal action. For example, talking to the undercover officer posing as a drug dealer about the drugs but not buying anything is not entrapment, because they didn’t do anything to be arrested for. On the other hand, if the defendant would have committed the crime anyway, it is hard to use the entrapment defense.
If the entrapment defense attorney can prove that the accused party wouldn’t have committed the crime without the actions or direct influence of the government agency, the defendant cannot be convicted of the crime based on the evidence that government agency collected.
The courts in many states use a rather subjective test to determine if the entrapment is illegal. The defense must show that the defendant was:
Under entrapment law, what counts as predisposition? One would be past criminal activities of a similar kind. For example, police officers could use someone’s prior arrests for drug possession as proof you were likely to do it again. Another would be a mental state that suggests they wanted to commit the act. Someone saying they want to blow up an office building online or verbally expressing this opinion have a hard time getting out of an FBI sting intended to catch potential terrorists.
Texas uses a more objective test to determine if the situation can be called entrapment. They look at the nature of the law enforcement inducement rather than trying to prove what someone was thinking at the time. The state of Texas says that if any reasonable and otherwise law-abiding citizen could have been induced in those same circumstances to commit the crime, then the court says it is entrapment. That is true whether or not the person had a criminal history or personal predisposition to commit the crime. On the other hand, this means that the lack of a criminal history and positive testimony from character witnesses are less important with regards to your defense. Yet proving that you don’t have a history of knowingly committing these offenses can aid your criminal defense.
The Texas Penal Code 8.06 puts limits on the entrapment defense. It says that police conduct merely affords a person the opportunity to commit a crime does not count as entrapment. That means that an undercover officer offering drugs or prostitution services is not guilty of entrapment if most people would refuse the offer.
The entrapment defense definition is limited. Furthermore, the entrapment defense itself is risky. After all, you’re admitting that you committed the crime. Your defense is that the government is to blame. Never try to fight charges by claiming entrapment rather than pleading non-guilty without consulting with a good defense attorney.
The burden of proof for an entrapment defense shifts from the prosecution to the defense in many ways. Normally, the prosecution has to prove you did it and were guilty beyond a reasonable doubt. In an entrapment defense, the defense now has the burden of production. You have to prove that you were entrapped or enticed to commit the crime you otherwise wouldn’t have committed. Ironically, this means you are proving you committed the offense. Yet you may be able to mount this defense if you can argue persuasively that an ordinary person would have committed the crime, as well. The only exception is if you’re making this defense at a pre-trial hearing. At that point, the defense has the burden of proof and must prove it beyond a reasonable doubt to the judge. If the prosecution raises a reasonable doubt, then you go to trial and have to convince a jury of your defense.
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