Using the Defense of Entrapment When Forced Into Criminal Activity

Lakeland, FL (Law Firm Newswire) October 26, 2015 – Entrapment is an affirmative criminal defense utilized in a situation where law enforcement induced someone to commit a crime that he or she would not have otherwise committed. An affirmative defense means the defendant must prove entrapment.

When entrapment is used as a defense in a criminal case, it assumes that an ordinary citizen would have resisted the temptation to commit a specific crime but for having been provided with some incentive by police. In a number of U.S. jurisdictions, entrapment may be used as a defense against criminal liability.

The defense of entrapment may be pled if: the plan to commit a specific crime was provided by a police officer, the officer performed some action to convince an individual to commit a crime, the defendant had no plans to commit a crime prior to being encouraged by police and (only in some U.S. states) a reasonable man would not believe an individual was planning to commit a crime prior to a member of law enforcement acting as a catalyst to its commission.

“Although police may provide opportunities for suspected criminals to commit a crime, for instance as part of a sting operation, law enforcement must not create crime,” said Thomas Grajek, a Lakeland, Florida, criminal defense attorney.

Is it illegal if a police officer lies to someone about his or her identity? Is that considered to be entrapment? “No, it is not entrapment,” said Grajek, “Police officers are allowed, by law, to lie while working undercover assignments.” Entrapment cannot be pled on that one fact by itself. There needs to be other evidence present that entrapment was involved.

Sting operations may involve agents controlled by the police, such as criminals seeking to reduce their prison sentences. In cases where an operative is a convicted criminal deployed to entrap other criminals for the police and is under their control, entrapment may be raised as a defense. It is important to note that the entrapment defense is only applicable to government actions.

“It is also important to know what the rules in your particular jurisdiction say,” said Grajek. “Some states apply an objective test to the entrapment defense and others employ a subjective test.”

The subjective test relates to the defendant’s state of mind. In other words, a jury would have to answer the question as to whether or not the defendant had the mental state and personality to commit the crime.

The objective test shines a spotlight on police conduct. The jury in this instance would be queried as to whether they believed a reasonable person would have decided to commit a crime after being encouraged by police.

It is best to seek criminal defense counsel prior to deciding to raise the defense of entrapment