Entrapment is a defense to criminal charges on the basis that the defendant only committed the crime because of harassment or coercion by a government official. Without such coercion, the crime would never have been committed. Entrapment can be a difficult defense to assert because it requires the defendant to establish that the idea and impetus for the crime was introduced by government officials, and the defendant was not already willing or predisposed to commit the crime. It is also important to note that entrapment can only occur with a government official, such as an FBI official or a police officer, not a private individual. Additionally, since it is an affirmative defense, the criminal defendant has the burden of establishing that entrapment occurred.
Opportunity is not Entrapment
In order to find and eliminate criminal behavior, law enforcement officers are allowed to engage in sting operations, whereby they create circumstances that allow individuals to take criminal actions that they can then be arrested and prosecuted for. These are considered “opportunities” for individuals believed to be involved in criminal behavior to commit crimes. An opportunity is considered very different from entrapment and involves merely the temptation to violate the law, not being forced to do so.
A sting operation is not inherently entrapment.
Unlike creating an opportunity, entrapment occurs when law enforcement officers urge, harass, or otherwise overly encourage an individual to commit a crime when he or she would not otherwise do so. Entrapment may result from the use of threats, intimidation, extended fraud, or any other means where the defendant was essentially forced to commit a crime.
For example, law enforcement officers could set up a sting operation for a suspected criminal to commit a burglary. This might involve a law enforcement officer pretending to be a fellow criminal and alerting the defendant of a warehouse shipment that will be arriving shortly and will not be protected by security. If the defendant completes the burglary on the basis of this information, this is not entrapment. The officers have merely created an opportunity for the defendant to commit the crime, and their efforts to do so were entirely legal. If however, the undercover law enforcement officer threatens that the defendant needs to commit the burglary for him, or he will be punished, or shows up every day and harasses the defendant to commit the burglary even though the defendant does not appear interested, this could amount to entrapment. It goes beyond providing an opportunity and involves efforts by law enforcement to force the burglary to occur.
Assessing whether a criminal defendant was harassed or forced into committing a criminal act is a difficult task and involves a thorough evaluation of the circumstances. In some states, an objective standard is used to evaluate entrapment, meaning that the criminal defendant must show that the tactics used by government officials were such that any reasonable person would have been induced to commit a crime.
A defendant with a prior conviction may have a harder time showing entrapment when the defendant’s predisposition to commit the crime is considered.
However, other states utilize a subjective standard for assessing entrapment. Under the subjective standard, the court or jury weighs the actions of the law enforcement officials against the criminal defendant’s predisposition to commit a crime and considers which was the primary motivating factor for the criminal act. Thus, the burden is on the defendant to show that the actions of the government officials were so overbearing and extreme as to constitute the primary reason for the crime to occur, or that the defendant had no prior motivation or disposition to complete the crime. This is often a much harder standard to meet than the objective standard.