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What is Entrapment?

Posted on: November 3, 2021

Entrapment is a defense to criminal charges. A person charged with a crime may claim entrapment when a law enforcement office coerces or otherwise aggressively induces them to commit a crime. Entrapment is not a crime, nor is it allowed. It is a criminal defense that lawyers can use when their clients have been charged with a crime they believe a law enforcement officer induced or coerced them to commit.

An essential aspect of entrapment is opportunity. For example, a judge or jury would expect a person to resist an ordinary temptation to violate a law. Therefore, a law enforcement officer is not entrapping a person simply by providing the opportunity to commit a crime.

The law enforcement officer must exhibit coercive behavior in trying to get the person to commit the crime, such as lies, threats, fraud, blackmail, harassment, flattery, intimidation, and similar actions. The behavior, not the opportunity, will prove whether there was entrapment.

In legal terms, entrapment prohibits law enforcement and other government agents from:

  • Originating a criminal design
  • Implanting in an innocent person’s mind the inclination to commit a crime
  • Inducing the commission of the crime so the government can prosecute such a person

How is Entrapment Proved?

Under most state laws, a judge or jury will use either an objective or subjective standard to determine whether entrapment occurred.

Objective standard. Under an objective standard, after hearing evidence, jurors decide whether a police officer’s actions would have induced any person who normally abides by the law to commit a crime. The determining factor is whether police conduct would have caused a reasonable person in the same circumstances to commit the crime, regardless of their specific mental state.

An example of the objective standard test is the following: An undercover officer asks a man to buy marijuana for him to treat his horrible nausea from chemotherapy. Marijuana is not legal in their state. This type of inducement could potentially cause anyone to commit the offense of purchasing marijuana. For example, they may have believed the man’s story, felt sympathy for him, and wanted to help.

Under the objective standard, a finding of entrapment is a real possibility, even if the person buying the marijuana had a history of illegal drug purchasing. Why? Because a normally law-abiding citizen could very well have also purchased the marijuana for the man.

Subjective standard. Under this standard, after hearing evidence, jurors decide whether the defendant’s predisposition to commit a crime makes them responsible for their actions, regardless of a law enforcement officer’s inducements. An entrapment defense is less likely to succeed under a subjective standard. The majority of states and federal courts apply the subjective test.

Under the objective standard, a jury will analyze both the nature of the enticement and the defendant’s mental state. The defendant must show that they were induced by law enforcement to commit the crime. But they will also have to undergo a prosecutor’s questioning as to whether they were predisposed to committing the crime.

The defendant, in short, would need to prove that officers used at least some persuasion or mild coercion to get them to commit the criminal act. The prosecutors would then have to prove that the defendant was ready, willing, and able to commit the crime and that the inducement did not overcome the defendant’s will to follow the law.

As an example, if the prosecutor can show that the defendant had been involved in similar criminal acts with other people, entrapment would most likely be very difficult to prove. Conversely, suppose the defendant had not previously engaged in or discussed the proposed criminal act with anyone. In that case, the prosecutor may not be able to prove predisposition.

In summary, under the subjective standard, the defendant’s entrapment defense will usually be successful when there is inducement and a lack of predisposition.

In New Jersey, a defendant must show by a preponderance of evidence that one of two situations occurred:

  • Law enforcement made knowingly false statements or representations, thereby making the defendant believe the conduct was not illegal, OR
  • Law enforcement persuaded the defendant to commit a crime that they would not have otherwise committed.

Using entrapment as a defense can be a challenging undertaking. A defendant will need a skilled and experienced lawyer to build an entrapment defense.

What are Examples of Entrapment?

Is it or is it not entrapment? Only a jury can decide if entrapment occurred, but the following are a few general examples.

  • Jane Smith is charged with selling illegal opiates that were for her personal use to an undercover police officer. While at a party, the officer claimed that she wanted the drugs for her father, who was ill and in horrible pain. The officer told Jane that she was not a cop, so not to worry. Is it entrapment? Most likely not. The officer gave Jane the opportunity to break the law but did not engage in extreme or overbearing behavior to coerce or induce her to break the law.
  • Mike Williams is also charged with selling illegal drugs to an undercover police officer. He testifies that the drugs were for his personal use. He explains that the officer repeatedly asked him for drugs for his mother’s pain relief. The officer would show up at his home several times a week to plead with him. Mike finally sold the officer some pills when he said his mom only had days to live, and he did not want her to be in pain. Is this entrapment? It could be very likely because of the officer’s egregious behavior, including repeated visits and lies intended to coerce the defendant.
  • Billy is charged with being a lookout for a gas station robbery carried out by a neighborhood gang. One of the gang members named Marco, who is actually an undercover police officer, told Billy he needed to participate in the robbery or Marco would not protect him from gang retribution. Is it entrapment?

A state that employs the objective standard for entrapment would decide whether Marco’s actions would have induced an ordinarily law-abiding citizen to participate in the crime. In a state that uses the subjective standard for entrapment, the prosecutor would need to offer evidence of Billy’s predisposition to commit the crime. They could point to his existing rap sheet and desire to be a highly regarded gang member. A jury would then have to decide whether Billy participated in the robbery because he desired and was willing to do so, regardless of Marco’s intimidation.

Who can Entrap Someone?

Entrapment laws are designed to limit outrageous conduct by law enforcement officers and other government agents. There can be no entrapment defense if a private individual convinces another private individual to commit a crime.

Using the last example above, had Marco not been an undercover cop but rather a private citizen, the entrapment defense could not have been used.

Some people would argue that all undercover police operations could be considered entrapment. The fact is that police are allowed to use false identities and deception in their covert investigations. As explained above, it is the officer’s coercive behavior and the defendant’s predisposition to commit the crime that will determine the success of an entrapment defense.

Monmouth County Criminal Defense Lawyers at Ellis Law, Advocate for Your Rights Under the Law

If you believe you are a victim of entrapment after being charged with a crime, contact the Monmouth County criminal defense lawyers at Ellis Law.  In this situation, is vital to have a strong criminal defense lawyer by your side throughout the legal process to ensure your rights are protected. We will work diligently to uphold your rights under the law. For a free consultation, call us at 732-308-0200 or complete our online form. We are located in Freehold, New Jersey, and help clients throughout Freehold, East Brunswick, Toms River, Middletown, Jersey City, Neptune, Hudson County, Union County, Essex County, Monmouth County, Marlboro, and Ocean County, as well as Brooklyn, New York, and New York City.