{"id":1252,"date":"2017-09-27T17:43:23","date_gmt":"2017-09-27T17:43:23","guid":{"rendered":"https:\/\/courses.lumenlearning.com\/suny-fmcc-criminallaw\/?post_type=chapter&p=1252"},"modified":"2020-10-31T17:47:20","modified_gmt":"2020-10-31T17:47:20","slug":"7-3-entrapment","status":"publish","type":"chapter","link":"https:\/\/courses.lumenlearning.com\/suny-sccc-criminallaw\/chapter\/7-3-entrapment\/","title":{"raw":"7.3 Entrapment","rendered":"7.3 Entrapment"},"content":{"raw":"
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Learning Objective<\/h3>\r\n
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  1. Compare the subjective and objective entrapment defenses.<\/li>\r\n<\/ol>\r\n<\/div>\r\n

    Historically, no legal limit was placed on the government\u2019s ability to induce individuals to commit crimes. The Constitution does not expressly prohibit this governmental action. Currently, however, all states and the federal government provide the defense of entrapment<\/a><\/span>. The entrapment defense is based on the government\u2019s use of inappropriately persuasive tactics when apprehending criminals. Entrapment is generally a perfect affirmative statutory or common-law defense. Entrapment has also been categorized as a frame up<\/strong> (a conspiracy to falsely incriminate someone).<\/p>\r\n

    Entrapment focuses on the origin<\/em> of criminal intent. If the criminal intent originates with the government or law enforcement<\/em>, the defendant is entrapped and can assert the defense. If the criminal intent originates with the defendant<\/em>, then the defendant is acting independently and can be convicted of the offense. The two tests of entrapment are subjective entrapment<\/a><\/span> and objective entrapment<\/a><\/span>. The federal government and the majority of the states recognize the subjective entrapment defense (Connecticut Jury Instruction on Entrapment, 2010). Other states and the Model Penal Code have adopted the objective entrapment defense (People v. Barraza, 2010).<\/p>\r\n\r\n

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    Subjective Entrapment<\/h2>\r\n

    It is entrapment pursuant to the subjective entrapment defense when law enforcement pressures the defendant to commit the crime against his or her will. The subjective entrapment test focuses on the defendant\u2019s<\/em> individual characteristics more than on law enforcement\u2019s behavior. If the facts indicate that the defendant is predisposed<\/em> to commit the crime without law enforcement pressure<\/strong>, the defendant will not prevail on the defense.<\/p>\r\n

    The defendant\u2019s criminal record is admissible if relevant to prove the defendant\u2019s criminal nature and predisposition. Generally, law enforcement can furnish criminal opportunities and use decoys and feigned accomplices without crossing the line into subjective entrapment. However, if it is clear that the requisite intent for the offense originated with law enforcement<\/em>, not the defendant<\/em>, the defendant can assert subjective entrapment as a defense.<\/p>\r\n\r\n

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    Example of Subjective Entrapment<\/h2>\r\n

    Winifred regularly attends Narcotics Anonymous (NA) for her heroin addiction. All the NA attendees know that Winifred is a dedicated member who has been clean for ten years, Marcus, a law enforcement decoy, meets Winifred at one of the meetings and begs her to \u201chook him up\u201d with some heroin. Winifred refuses. Marcus attends the next meeting, and follows Winifred out to her car pleading with her to get him some heroin. After listening to Marcus explain his physical symptoms of withdrawal in detail, Winifred feels pity and promises to help Marcus out. She agrees to meet Marcus in two hours with the heroin. When Winifred and Marcus meet at the designated location, Marcus arrests Winifred for sale of narcotics. Winifred may be able to assert entrapment as a defense if her state recognizes the subjective entrapment defense<\/strong>. Winifred has not used drugs for ten years and did not initiate contact with law enforcement. It is unlikely that the intent to sell heroin originated<\/em> with Winifred because she has been a dedicated member of NA, and she actually met Marcus at an NA meeting while trying to maintain her sobriety. Thus it appears that Marcus pressured<\/em> Winifred to sell heroin against a natural predisposition<\/em>, and the entrapment defense may excuse her conduct.<\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n

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    Objective Entrapment<\/h2>\r\n

    The objective entrapment defense focuses on the behavior of law enforcement<\/em>, rather than the individual defendant. If law enforcement uses tactics that would induce a reasonable<\/em>, law-abiding<\/em> person to commit the crime, the defendant can successfully assert the entrapment defense in an objective entrapment jurisdiction. The objective entrapment defense focuses on a reasonable person, not the actual defendant, so the defendant\u2019s predisposition to commit the crime is not relevant. Thus in states that recognize the objective entrapment defense, the defendant\u2019s criminal record is not admissible to disprove the defense.<\/p>\r\n\r\n

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    Example of Objective Entrapment<\/h2>\r\n

    Winifred has a criminal record for prostitution. A law enforcement decoy offers Winifred $10,000 to engage in sexual intercourse. Winifred promptly accepts. If Winifred\u2019s jurisdiction recognizes the objective entrapment defense<\/strong>, Winifred may be able to successfully claim entrapment as a defense to prostitution. A reasonable<\/em>, law-abiding person<\/em> could be tempted into committing prostitution for a substantial sum of money like $10,000. The objective entrapment defense focuses on law enforcement<\/em> tactics, rather than the predisposition of the defendant, so Winifred\u2019s criminal record is irrelevant and is not admissible as evidence. Thus it appears that law enforcement used an excessive inducement, and entrapment may excuse Winifred\u2019s conduct in this case.<\/p>\r\n\r\n

    Difference between entrapment and frame up.<\/span><\/strong><\/span><\/h2>\r\n
    Entrapment<\/span> based on unacceptable government persuasion even though defendant admittedly chose to commit.<\/strong><\/div>\r\n
    Frame-up<\/span> \u2013 gov\u2019t does acts & attributes to defendant (1980 bombing at summer Olympics in Atlanta, accusing Richard Jewels).<\/strong><\/div>\r\n
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    Figure 7.9<\/span> Comparison of Subjective and Objective Entrapment<\/p>\r\n\r\n<\/div>\r\n\r\n\r\n\r\n\r\n
    Subjective Entrapment<\/th>\r\n<\/td>\r\n<\/tr>\r\n
    Objective Entrapment<\/th>\r\n<\/td>\r\n<\/tr>\r\n<\/tbody>\r\n<\/table>\r\n
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    Figure 7.10<\/span> Diagram of Defenses, Part 2<\/p>\r\n \"Diagram<\/a>\r\n\r\n<\/div>\r\n<\/div>\r\n

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    Key Takeaway<\/h3>\r\n