THE AFFIRMATIVE DEFENSE OF ENTRAPMENT:
SUBJECTIVE AND OBJECTIVE ENTRAPMENT
By:
Dr. Peter A. Barone Esq.
The
act of government agents or officials that induces a person to commit a crime
he or she is not previously disposed to commit is the very simplistic and to
the point definition of entrapment.
The defense of
entrapment frequently arises when crimes are committed against willing victims.
It is likely to be asserted to counter such charges as illegal sales of liquor
or narcotics, bribery and sec offenses, and gambling. A person who commits
these types of crimes are most easily apprehended when officers disguise
themselves as willing victims. Most states require a defendant who raises the
defense of entrapment to prove he or she did not have a previous intent to
commit the crime. Courts determine whether a defendant had a predisposition to
commit a crime by examining the person's behavior prior to the commission of
the crime and by inquiring into the person's past criminal record if one
exists. Usually, a predisposition is found if a defendant was previously
involved in criminal conduct similar to the crime with which he or she is
charged. It is hard to claim no predisposition to burglary or possession of
narcotics when you have several arrests and convictions for burglary and possession
of illegal narcotics.
When an officer supplies
an accused with a tool or a means necessary to commit the crime, the defense is
not automatically established. Although this factor may be considered as
evidence of entrapment, it is not conclusive and is rebuttable by the state.
The more important determination in the case of entrapment is whether the
official planted the criminal idea in the mind of the accused or whether the
idea was already there; was the person predisposed to act in this manner.
Entrapment is not a
constitutionally required defense, and, consequently, not all states are bound
to provide it as a defense in their criminal codes. Some states have excluded
it as a defense, reasoning that anyone who can be talked into a criminal act
cannot be free from guilt.
Historically, no legal limit was placed on the
government’s 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 to a
criminal defendant. This is a defense that asserts the requisite intent for the
crime originated with the government or law enforcement, not the defendant. The
entrapment defense is based on the government’s use of inappropriately
persuasive tactics when apprehending criminals. Entrapment is generally a
perfect affirmative statutory or common-law defense.
Entrapment focuses on
the origin of criminal intent. If the criminal intent originates with
the government or law enforcement, the defendant is entrapped and can
assert the defense. If the criminal intent originates with the defendant,
then the defendant is acting independently and can be convicted of the offense.
The two tests of entrapment are subjective entrapment where law enforcement
pressures the defendant to commit a crime against his or her will and objective
entrapment where law enforcement uses tactics that would induce a reasonable,
law-abiding person to commit a crime. The federal government and the majority
of the states recognize the subjective entrapment defense. Other states and the
Model Penal Code have adopted the objective entrapment defense. 1
Subjective Entrapment
It is seen to be a case
of entrapment pursuant to the subjective entrapment defense when law
enforcement pressures the defendant to commit the crime against his or her will
or something they would not normally do or want to do. When seeking to
determine if subjective entrapment was at play in a case there must be
assessment of the actions using a test. The actual subjective entrapment test that
is used to make this determination focuses on the Defendant’s individual
characteristics more than on law enforcement’s behavior. After making an
assessment of the issues and fact of the case the person making the assessment
must look to see if the facts indicate that the defendant is or was Predisposed to commit the crime alleged
without law enforcement pressure, the defendant will not prevail on the defense
of Subjective Entrapment as an affirmative defense.
The defendant’s criminal
record is admissible if relevant to prove the defendant’s 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, not the defendant, the defendant can
assert subjective entrapment as a defense.
Example of Subjective Entrapment
Listed here is one of
many possible scenarios that can illustrated and demonstrated what is mean by Subjective
Entrapment as an Affirmative Defense by a Defendant. Harry Smyth regularly
attends Narcotics Anonymous (NA) for his 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 Smyth at one of the meetings and begs him
to “hook him up” with some heroin. Smyth refuses. Marcus attends the next
meeting, and follows Smyth out to her car pleading with her to get him some
heroin. After listening to Marcus explain his physical symptoms of withdrawal
in detail, Smyth feels pity and promises to help Marcus out. She agrees to meet
Marcus in two hours with the heroin. When Smyth and Marcus meet at the
designated location, Marcus arrests Smyth for sale of narcotics. Smyth may be
able to assert entrapment as a defense if her state recognizes the subjective
entrapment defense. Smyth 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 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 Smyth
to sell heroin against a natural predisposition,
and the entrapment defense may excuse her conduct.
Objective Entrapment
The objective entrapment
defense focuses on the behavior of
law enforcement, rather than the individual defendant. If law
enforcement uses tactics that would induce
a reasonable, law-abiding 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’s predisposition to commit the crime is not relevant. Thus in states
that recognize the objective entrapment defense, the defendant’s criminal
record is not admissible to disprove the defense its main focus is on the
officers behavior.
Example of Objective Entrapment
Smyth has a criminal
record for prostitution. A law enforcement decoy offers Smyth $10,000 to engage
in sexual intercourse. Smyth promptly accepts the lucrative offer. If Smyth’s
jurisdiction recognizes the objective entrapment defense, Smyth may be
able to successfully claim entrapment as a defense to prostitution. A reasonable, law-abiding person
could be tempted into committing prostitution for a substantial sum of money
like $10,000. The objective entrapment defense focuses on law enforcement tactics, rather than the predisposition
of the defendant, so Winifred’s criminal record is irrelevant and is not
admissible as evidence. Thus it appears that law enforcement used an excessive
inducement, and entrapment may excuse Smyth’s conduct in this case.
Law Enforcement
personnel must be knowledgeable of the laws in their state as relates to
entrapment and which of these types of entrapment does their state have as
their entrapment law.
* Information provided for this writing was mostly provide from the knowledge and experience of 41.5 years in the Criminal Justice Field and 24 years as a Licensed Attorney. A few specifics were taken from the following text book.
Reference
Hails
J. (2014). Criminal Evidence. Stamford CT. Cengage Learning.
