Monday, November 21, 2011

How Does the Entrapment Defense Work?


Like Miranda Rights (below), entrapment seems to be one of those issues that is misunderstood more often than not.  I think movies have given people a false understanding of how the defense actually applies.  Here's my feeble attempt at bringing a little clarity to the subject.

Again, this is intended as practical advice for a lay audience, not an in-depth academic study of the issue.

Entrapment is a defense to criminal charges when police have essentially overcome your will and forced you to commit a crime that you wouldn't have otherwise committed, given the opportunity.  A showing of entrapment will not force the prosecutors to dismiss a case against you; it is a jury question.  Before a jury begins deliberating on your guilt or innocence, the judge will spend an hour or two reading instructions to the jurors in order to help guide their legal decision-making.  The judge will explain the elements of the crime charged and the facts that the jury may take into consideration in making their findings.  If entrapment is an issue, then the judge will read something like this:

"It is a defense to a criminal charge that the commission of the alleged criminal act, was induced by the conduct of law enforcement agents or officers when the conduct would likely induce a normally law-abiding person to commit the crime. 

To establish this defense, the defendant has the burden of proving by a preponderance of the evidence that the conduct of the law enforcement agents or officers would likely induce a normally law-abiding person to commit the crime.

In deciding whether or not this defense has been established, guidance will generally be found in the application of one or both of two principles.  First, if the actions of the law enforcement agent would generate in a normally law-abiding person a motive for the crime other than ordinary criminal intent, entrapment will be established.  An example of this type of conduct would be an appeal by the police that would induce a normally law-abiding person to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose.  Second, affirmative police conduct that would make commission of the crime unusually attractive to a normally law-abiding person will likewise constitute entrapment.  This conduct would include, for example, a guarantee that the act is not illegal or the crime will go undetected, an offer of exorbitant consideration, or any similar enticement.

Finally, while the inquiry must focus primarily on the conduct of the law enforcement agent, that conduct is not to be viewed in a vacuum; it should also be judged by the affect it would have on a normally law-abiding person situated in the circumstances of the case at hand.  Among the circumstances that may be relevant for this purpose, for example, are the transactions preceding the crime, the suspect's response to the inducements of the officer, the gravity of the crime, and the difficulty of detecting instances of its commission." (CALJIC 4.60 et seq.)

We've all seen stings on TV (maybe even in person) whereby the cops pose as drug dealers, prostitutes or underage victims (i.e. To Catch a Predator) and then wait for subjects to take the bait.  When cops engage in these kinds of busts, they're (supposed to be) careful ONLY to present an opportunity for their marks to commit crimes, and NOT to encourage otherwise law-abiding citizens to commit crimes that they wouldn't have committed anyway if left to their own devices. 

Example 1: You're a drug addict, you approach an undercover cop at the park and you ask to buy heroin.  Next thing you know, you're under arrest.  You have not been entrapped because the police didn't force you to anything that you didn't already want to do.

Example 2: You're a girl scout and an undercover cop offers you some heroin.  You tell him that you don't use drugs, but he badgers you, threatens you, and tells you that heroin can work wonders for your complexion.  You finally give him $20 to leave you alone and you're arrested.  You have a good argument for entrapment based on these facts because it appears that police induced a normally law-abiding person to commit a crime that she would not have otherwise committed.

Example 3: You're drinking at a house party and police come to the door.  They tell you that your car is illegally parked and that it will be towed unless it is moved.  You move the car as instructed and you're arrested for DUI.  You have probably NOT been entrapped here.  The police did not force you to drive the car, they merely informed you that it would be towed unless it were moved.  You could have found a sober driver or else agreed to have the car towed. 

A common myth that I've heard repeated on movies is the idea that undercover cops have to tell you that they're cops if asked, otherwise their actions become entrapment.  This is pure mythology.  Think about how effective undercover operations would be if agents were required to tell subjects that they were cops (not very).  Don't expect an undercover cop to reveal himself if asked.

It should be noted that I have never heard of a situation where the defendant successfully argued the entrapment defense, except the notorious case of John DeLorean (of time-traveling sports car fame).  In 1982, Mr. DeLorean's business was in serious trouble.  A friend of his (acting as an FBI informant) proposed a deal whereby Mr. DeLorean would help smuggle a load of cocaine and launder the cash.  After a series of threats against his family, Mr. DeLorean reluctantly agreed to participate in the plan.  In 1984, a jury found him not guilty because he had been entrapped by the government. Agents had effectively overcome his will by threatening his family.

The moral of the story is that entrapment is a very difficult argument for a defendant to successfully make.  When in doubt, don't break the law, but if you must, call us for a free consultation.  (714) 505-2468.  Ask for John.

Thanks for reading.

Santa Ana Criminal Defense Lawyer