What is Entrapment?

What Does Entrapment Mean?

Entrapment is a word you’ve likely heard before, but not everyone understands what it means and how it can be used as a criminal defense.

Entrapment refers to the interaction between a defendant and law enforcement before or during a crime. If it can be shown that law enforcement used coercion or aggressive tactics to cause someone to commit a crime, an entrapment defense might be an option.

What Must Be Present in a Defense of Entrapment?

According to Texas Penal Code. Sec. 8.06, in order to prove entrapment, it must be shown:

“… that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense.”

To claim entrapment, an agent of the government – usually law enforcement – must have performed an act that forced someone into committing a crime. This is different than offering an opportunity to commit a crime. In most solid entrapment defenses, a government agent used fraud, harassment, threats, or flattery to induce the defendant to commit the crime.

When determining if a situation warrants a defense of entrapment, a subjective or objective standard can be used based on the state in which the case is being tried. Because entrapment is a criminal defense and comes from common law, as opposed to constitutional law, states can determine how they want to apply entrapment defenses. In Texas, the objective standard is used.

Under the objective standard, jurors would decide whether the actions of the law enforcement authority caused an otherwise law-abiding citizen to commit a crime. Under the subjective standard, jurors determine if the defendant’s predisposition made him/her not responsible for the crime. They determine responsibility regardless of what law enforcement did. Defenses based on the objective standard tend to be successful more often than those on the subjective standard.

Why Do We Have Entrapment Laws If Someone is Still Guilty of a Crime?

The reason entrapment laws were created was to keep law enforcement and other government officials in check. Remember, entrapment only applies to government officials. If a private citizen convinces another private citizen to commit a crime, an entrapment defense would not apply.

It’s also important to remember that entrapment is an affirmative defense. This means that as the defendant, you are admitting you committed the crime. The burden of proof is on you to prove by a preponderance of evidence, as opposed to reasonable doubt, that you do not deserve to be punished. Your defense is giving a reason why you committed the crime and hoping the jury sees that reason as valid. Once you’ve used an affirmative defense, you cannot argue doubt that a crime was committed. You also cannot argue that you did not commit that crime.

Examples

It’s important to remember that merely offering an opportunity to commit a crime is not entrapment. For instance, a common mistaken scenario of entrapment is a police officer asking to buy drugs and a defendant fulfilling this request. This is not entrapment unless it involved the officer persuading or coercing the defendant to sell the drugs.

It should also be noted that entrapment does not need to be under threat or duress.

For instance, in the above scenario, if the officer witnessed the defendant committing an armed robbery but told the defendant that he would not report the crime if that defendant sold him drugs, that would be considered entrapment. In this situation, it would be difficult for the average person to resist the temptation to get away with a criminal act for which they would likely serve jail time when presented with an offer from the police officer.

Additionally, the defendant must also prove he wasn’t predisposed to commit the crime. If a defendant has a criminal history of selling drugs, it would become more difficult to prove entrapment. This is the case even if the officer was aggressive.

Example 2

Another example of entrapment comes in the case Sorrells v. United States (1932). In the case, the defendant allegedly smuggled alcohol during prohibition and was asked by a government agent for liquor. The defendant refused two times, but the agent continued to coerce him. He stated that he was a fellow veteran who served in World War I in the same division. The defendant eventually agreed to exchange whiskey for $5.

The court ruled that the defendant could use entrapment as a defense and the unanimous verdict of the court was that the crime had been instigated by the government agent and that there was no proof that the defendant had a previous disposition to commit the crime because there was no evidence he had previously smuggled alcohol. The case was won on an appeal. A lower court had not allowed the defense to argue entrapment in the jury trial.

Read more about Sorrells v. United States.

Do you have questions about entrapment? Have you been accused of a crime and need assistance building a defense? Contact Gary Tabakman at (713) 429-1624.