It is a defense to most crimes that the defendant was entrapped into committing the crime, either by a law enforcement officer or by someone working as an agent of a law enforcement officer.
Entrapment is usually used as a defense to victimless crimes, such as buying illegal narcotics or soliciting prostitution. Charges of violent crimes like rape or murder or robbery cannot usually be avoided by an entrapment defense.
Further, the entrapment defense is only available where the entrapment was committed by either a law enforcement officer or someone working in cooperation with a law enforcement officer. Thus, if a person is induced to commit a crime by a private citizen, he cannot use the entrapment defense. See Henderson v. United States, 237 F.2d 169 (5th Cir. 1956). For example:
Fred, a law abiding citizen, is walking home from work one day when Barney walks over to Fred and tries to convince him to buy a bag of marijuana. Fred has never tried drugs before and has no particular interest in doing so now. However, Barney is so persuasive that Fred decides that one time couldn’t hurt, and he buys the bag. If Fred is charged with a crime, he will not be able to use the entrapment defense if Barney is a private citizen. However, if Barney were an undercover police officer, then Fred would at least be able to argue for an entrapment defense.
As far as the criteria required in order to be able to use the entrapment defense, jurisdictions are split between the traditional subjective test and the more modern objective test. According to the traditional subjective view, entrapment exists only if a law enforcement officer created the intent to commit the crime in the mind of the defendant and the defendant was not predisposed to commit crimes of this kind before being "seduced" to do so by the officer. This test is subjective because entrapment depends on what subjectively induced the defendant to commit the crime. See Sorrells v. United States, 287 U.S. 435 (1932). For example:
Fred, a law abiding citizen, is walking home from work one day when Barney walks over to Fred and tries to convince him to buy a bag of marijuana. Fred has never tried drugs before and has no particular interest in doing so now. However, Barney is so persuasive that Fred decides that one time couldn’t hurt, and he buys the bag. What Fred does not know is that Barney is an undercover police officer. As soon as Fred pays Barney for the drugs, Barney arrests Fred for buying illegal narcotics. In this case, Fred has the entrapment defense at his disposal because Barney created the intent to commit the crime in Fred’s mind, and Fred was not predisposed to commit crimes of this kind.
Please note that if, in the above example, Fred was a drug addict who frequently bought narcotics, Fred would not have the entrapment defense at his disposal because he is, in fact, predisposed to commit crimes of this nature. In fact, the issue of predisposition is often the determining factor in deciding whether or not the defendant can use the entrapment defense. If the jury finds that the defendant was predisposed to commit the crime that he committed, the defendant will not be allowed to use the entrapment defense, no matter how extensive police participation was in inducing the defendant to commit the crime on this particular occasion.
The fact that a law enforcement official gave the defendant the opportunity to commit a crime does not, by itself, constitute entrapment. Entrapment will be determined based on both the defendant’s reaction to the opportunity and the law enforcement officer’s reaction to the defendant’s reaction. In other words, if the law enforcement officer gives the defendant the opportunity to commit a crime and the defendant responds to the opportunity, this indicates a predisposition to commit the crime, and entrapment is not likely to be available to the defendant. If, however, the defendant repeatedly refuses the opportunity and only agrees to commit the crime after the law enforcement officer has offered the opportunity repeatedly, entrapment will be available to the defendant, and it will most likely succeed in protecting him from a conviction. For example:
EXAMPLE (1): Fred, a law abiding citizen, is walking home from work one afternoon when Wilma, a prostitute, approaches him and offers her services for the price of fifty dollars. Fred has never used the services of a prostitute before, but he decides to give it a try and he takes Wilma up on her offer. Wilma leads Fred to a nearby motel room and, once inside, she identifies herself as an undercover police officer and arrests Fred. In this situation, an entrapment defense will probably not be available to Fred because Fred responded readily to the opportunity to commit this crime. Therefore, although Wilma provided Fred with the opportunity to commit the crime, she did not induce him to do it.
EXAMPLE (2): Fred, a law abiding citizen, is walking home from work one day when Wilma, a prostitute, approaches him and offers him her services for the price of fifty dollars. Fred tells Wilma he is not interested and continues walking. Over the next several blocks Wilma follows Fred and repeatedly offers her services to him, which Fred repeatedly rejects. However, after a few minutes, Wilma’s repeated offers pique Fred’s curiosity and he decides to give it a try. Wilma then leads Fred to a nearby motel room and once inside she identifies herself as an undercover police officer and arrests Fred. In this case, Fred will have the entrapment defense at his disposal because Wilma repeatedly requested that Fred commit the crime and it was only after several rejections by Fred that Wilma succeeded in getting him to actually commit the crime. Therefore, in this case, Wilma has actually induced Fred, who does not seem to be predisposed to committing this kind of crime, into committing the crime.
As far as the burden of proof is concerned, under the traditional approach, if a defendant tried using entrapment as a defense, the burden of proof was on the defendant to establish that he was induced to commit the crime by a law enforcement officer. However, once the defendant proved inducement, the prosecution then had the burden of proving beyond a reasonable doubt that the defendant was, in fact, predisposed to commit the crime.
Some jurisdictions have abandoned the traditional subjective approach to entrapment and use a more objective approach which ignores the defendant’s frame of mind when he committed the crime and focuses more on the conduct of the law enforcement official. Under this test, the court will allow a defense of entrapment if the defendant committed his offense as a result of activity by a law enforcement official that was likely to induce a reasonable person to commit a crime. Thus, the determination of whether entrapment is available is based solely on the conduct of the law enforcement official. If the conduct is such that it would have induced a reasonable person to commit a crime, the defendant will be able to use the entrapment defense even if he is predisposed to commit the crime and even if he responded readily to the opportunity to commit the crime when it was given to him. This test has been adopted by the Model Penal Code.
In jurisdictions that apply this objective test to determining entrapment, the burden of proof is on the defendant to show that he was entrapped.