Rarely raised in a defense, and difficult to prove, entrapment can be a powerful argument that can result in a dismissal. But, I have found the concept of entrapment is often misunderstood by the general public. With the hope of clearing up any misconceptions, let’s talk about “entrapment.”
An affirmative defense means the defendant did, in fact, commit a criminal act. However, if the affirmative defense is proven, then the criminal conduct is excused.
Removing the legalese, consider the affirmative defense of “self-defense.” As one example, consider a defendant shooting and killing someone because they had to protect themselves or others from what they believed was a deadly attack.
If you raise the self-defense claim, you would need to prove your life or the lives of others were in jeopardy. If you can establish that with evidence, the State would then be required to show, that even though you did in fact shoot the weapon, you did so with criminal intent.”
If the jury agrees that you have proven your affirmative defense, the judge will instruct them to find you not guilty. They would agree that even though you did shoot someone, your conduct was justified and excused.
Entrapment, like self-defense, is one type of affirmative defense. Normally, the defendant does not need to present any evidence. You are presumed innocent until the State proves each element of their case. However, for any affirmative defense, the defendant MUST produce evidence.
TO PROVE ENTRAPMENT:
- The defendant testifies and MUST ADMIT the crime charged;
- The idea of committing the offense started with law enforcement or their agents;
- Law enforcement or their agents urged and induced the person to commit the offense;
- The person was not predisposed to commit the type of offense charged before law enforcement or their agents induced them to commit the offense.
THE TRICKY PART:
- There is no entrapment if law enforcement or their agents merely provided the person with an opportunity to commit an offense;
- Officers or their agents may use a ruse to conceal their identity
In almost 30 years of practicing criminal law, I have found entrapment possible in many types of criminal offenses. But normally, entrapment is seen in drug cases, prostitution, and with the recent “catch a predator” stories, those cases involving sex crimes with minors.
Considering a drug crime, consider an undercover officer buying or selling drugs. Whether buying or selling, the officer is allowed to be undercover and use any story that they want. If you are the one seeking the drug purchase, or you are the one with the drugs and dealing, then you are predisposed to the drug transaction. And, if predisposed, you are prohibited from arguing entrapment.
Considering a prostitution accusation, those offenses often arise in either a massage parlor, or a stereotypical street walker or in-call operation. Consensual sex between adults is legal. What makes it illegal if if there is a transaction involving sex for anything of value (usually money). Undercover cops are permitted to lie. Believe it or not, they are also permitted to be naked. If you are the person asking about sex for money, then you are prohibited from arguing entrapment.
Consider the “catch a predator” scenarios: the guy shows up after they have exchanged calls with the “minor,” usually an undercover officer pretending to be a minor. If you show up, then you are predisposed to the criminal conduct. And, if that is the case, you will be prohibited from arguing entrapment.
WHAT TO LOOK FOR?
Cops are trained to NOT engage in behavior that can lead to an entrapment argument. They will not actually use the words for a criminal act until you do. They will not raise the dollar amount of the transaction until you do.
They will say things like, “what do you want,” “you know I am only a minor,” or “that would be wrong.” Once you confirm your willingness to commit the illegal act, (they will normally repeat the words you used) then they will engage in the same structured dialogue to discuss the price.
Cops normally will record your conversation or capture your text or emails. They will not raise the specific topics or price. To avoid an entrapment defense, they will let you hang yourself by your own words and conduct.
BUILDING YOUR DEFENSE
When I first started this article, I noted how hard it was to prove entrapment. But the first step is knowing what to look for: Did the cops bring up the drugs, the sex, the dollars? Did the cops use an informant or other agent (actual minor)? Did their little helper do things they shouldn’t have? Those folks do not have the same training as officers, and quite frankly, are normally not as “honest.” Did they have their own motivations to lie about setting you up? Did they get paid or receive a benefit to help the officers?
I recently defended a “catch a predator” case in which we showed the house rented by the cops for the bad guys to show up was actually leased by a politically motivated group. And, in the same case, the undercover officer was working her first sting. We were able to show that the officer made numerous mistakes by raising the sex acts to be performed and the dollars before our client brought it up and the 3rd party who leased the home was receiving a benefit with each person arrested.
So, entrapment does happen. You just need to know how to investigate it and use it as a defense to your case.
In many cases, an affirmative defense may be possible. But if you don’t have an attorney with the knowledge and experience to investigate the merits of the defense and present it to the jury, the odds of prevailing will be difficult. I am a Board Certified Criminal Law Specialist. If you or anyone you know has been accused of any felony or misdemeanor, please call for a free strategy session at 602.899-1596, email me at Howard@SnaderLawGroup.com or visit https://www.SnaderLawGroup.com.