What is entrapment?

What is entrapment?

Entrapment occurs when a person who had no previous intention to violate the law is persuaded to commit a crime by a person working for the government. One case, Commonwealth v. Remedor, 52 Mass. App. Ct. 694, talks about the rules for raising an entrapment defense.

In other words, entrapment is when a person commits a crime, but they do so only because of entrapment.

Entrapment occurs when a person who had no previous intention to violate the law is persuaded to commit a crime by an officer of the government.

Remember that “entrapment” is not a crime but rather a legal defense. If a jury finds a defendant faces entrapment, the defendant is NOT GUILTY.

Why is entrapment a legal defense?

The function of law enforcement is to prevent crime and to apprehend criminals. The state does not tolerate having its officers investigating crime by implanting criminal ideas in innocent minds.

When can I use the entrapment defense?

The entrapment defense happens when a government officer implants the idea of committing a crime in an innocent mind. There must be existing evidence of inducement that goes beyond mere solicitation.

If a defendant has a “predisposition” to commit a crime this means they are ready and willing to commit it.

The defense of entrapment is not applicable if a person is already ready and willing to commit a crime.

Remember that the issue is not whether the police brought about a particular offense, but whether the police brought about the defendant’s disposition (i.e. a person’s inherent qualities of mind and character) to commit the crime in question. Because of this, there is nothing improper about the police setting traps to catch those already disposed toward committing a crime. Such tactics could include using undercover methods to entrap unsuspecting criminals and NOT unsuspecting innocent persons.

What is drug entrapment?

Also note that when the entrapment defense is offered to a drug distribution charge, evidence of prior distribution or possession to distribute, but NOT simple possession (i.e. knowingly or intentionally possessing a controlled substance by a person not licensed or registered to possess the substance in question), is considered relevant to the idea of predisposition.

Entrapment is a defense that the defendant raises at trial, NOT by a pretrial motion to dismiss the case. To raise an entrapment issue, the defendant must introduce some evidence of inducement by a government agent or a person acting at his or her discretion.

In order to show inducement, the defendant must provide evidence of ANY of the following:

  • Pleading or arguing
  • Lengthy negotiations
  • Aggressive persuasion
  • Coercive encouragement
  • Repeated or persistent solicitation
  • Importuning (i.e. pressingly and persistently asking someone for or to do something)
  • Playing on sympathy
  • Other emotion

A judge ideally will not consider the credibility of this evidence of inducement. Instead the judge should focus on predisposition.

How will the court determine if there was entrapment?

It is the duty of juries to determine whether or not the actions of the police actually amounted to entrapment.

Juries will consider the following questions in making this determination:

  • Did the criminal intent in this case originate with the defendant or with the police?
  • Was the defendant an innocent person, who was initially not ready or willing to break the law, but faced enticement or ensnarement into committing a crime by the police?
  • Was the defendant already ready and willing to commit a crime such as this if the opportunity presented itself, and the police merely provided that opportunity?

Who has the burden of proof with an entrapment defense?

The Commonwealth has the burden of proving beyond a reasonable doubt that a government agent did NOT entrap the defendant.

The Commonwealth may do this by proving EITHER that:

  • There was no inducement by:
    • A government agent
    • Someone acting at the request of a government agent
  • The defendant had a predisposition to commit the crime

Remember that in order for the Commonwealth to prove the defendant GUILTY of the crime in question, it must:

  • Prove beyond a reasonable doubt that the defendant did not face entrapment
  • Prove all the elements of the crime beyond a reasonable doubt

Note that it is the Commonwealth’s burden to prove the defendant’s willingness to commit the crime.

Can the court look at my past criminal history?

Moreover, the Commonwealth can assess a defendant’s past criminal history or predisposition to commit an offense by considering:

  • The defendant’s character and reputation
  • Whether the government initially suggested the criminal activity
  • If the defendant engaged in the alleged activity for profit
  • Whether the defendant showed any reluctance to commit the alleged offense
  • The nature of the government’s alleged inducement

Does having prior convictions for the same crime weaken my defense?

If the Commonwealth introduces evidence that establishes (ONE OR BOTH):

  • The defendant faced conviction of the same offense charged
  • That the defendant has a reputation regarding the offense charged in the case in question

…jurors may consider that evidence solely for whatever light it sheds on the issue of whether the defendant was predisposed and ready to commit the offense with which he or she is charged. Jurors are not allowed to consider such evidence for any other purpose.

Am I admitting to a crime with an entrapment defense?

NO, a defendant is NOT legally admitting to a crime when they use an entrapment defense. A defendant may request a jury charge on entrapment, if supported by the evidence, without having admitted to committing the crime in question.

Can I face indirect entrapment through someone else?

YES, an entrapment defense is available if AT LEAST ONE of the following is true:

  • Government agents intentionally recruited a middleman to entrap the defendant
  • The middleman communicates to the defendant the government’s inducement to him

Moreover, note however that if the middleman takes it upon himself to induce the defendant to commit the crime, an entrapment defense is NOT available because the middleman (even if still a government agent) is not acting directly under the purview of the state.



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