Entrapment is a defense, not a charge. It applies when the police, or someone working for them, pushed a person into a crime that person would not otherwise have committed. Police are allowed to set traps and run undercover operations. They are not allowed to create a crime by talking an unwilling person into it. In Massachusetts, the rules for this defense come from the District Court model jury instruction on entrapment, Instruction 9.140.
At a Glance: The Entrapment Defense
Raised at trial
not by a pretrial motion to dismiss
Low bar to raise
the defense needs only “some evidence” of inducement
Burden shifts
the Commonwealth must then disprove entrapment beyond a reasonable doubt
If it succeeds
not guilty
The source: Massachusetts District Court Model Jury Instruction 9.140 (Entrapment, revised August 2023)
What Entrapment Means
Under Instruction 9.140, a person is entrapped if law enforcement officials, either directly or through an agent, induced that person to commit a crime they would not otherwise have committed. The defense targets the government’s conduct. Its point is to stop police from manufacturing crime, not to excuse someone who was already looking to break the law.
That is why the instruction draws a clear line. Police may use undercover methods and may “merely afford opportunities” for a crime to someone who is ready and willing to commit it. What they may not do is plant the idea and push an unwilling person into acting on it.
Step One: Raising the Defense
Entrapment is a trial defense. It is not raised by a pretrial motion to dismiss. To get the issue in front of the jury, the defense must introduce some evidence of inducement by a government agent or by a person acting at the agent’s direction. The threshold is very low. The evidence can come from the defendant’s own testimony, and the judge does not weigh its credibility in deciding whether the defense has met that first burden.
You do not have to admit the crime to raise entrapment. The instruction is written for a defendant who denies guilt and argues, in the alternative, that if they did commit the offense, they did so only because they were entrapped.
Step Two: The Commonwealth’s Burden
Once there is some evidence of inducement, the burden moves to the Commonwealth. To defeat entrapment, it must prove beyond a reasonable doubt one of two things:
The defendant was not induced by a law enforcement official or by a person acting at an official’s direction; or
The defendant was predisposed to commit the crime.
If the Commonwealth cannot prove either one, the jury must find the defendant not guilty.
What Counts as Inducement
Instruction 9.140 gives examples of the kinds of pressure that can count as inducement:
aggressive persuasion;
coercive encouragement;
lengthy negotiations;
pleading or arguing with the defendant;
repeated or persistent solicitation;
playing on the defendant’s sympathy or other emotions; and
promises of rewards.
The list is not exhaustive. Any other evidence of inducement can count. What does not count is a simple request. An officer asking someone to commit a crime, standing alone, is not enough to show entrapment.
The instruction also addresses substance use. If there is evidence that law enforcement knew the defendant had a substance use disorder and exploited that knowledge to induce the crime, the jury may consider that in deciding whether the defendant was entrapped.
What Counts as Predisposition
Predisposition means the defendant was ready and willing to commit the crime when the opportunity came up. Under the instruction, the Commonwealth can try to show this through:
the defendant’s ready acceptance of the opportunity to commit the crime;
the defendant’s prior similar conduct; or
other direct or circumstantial evidence.
It is not entrapment if a person was already ready and willing to commit a crime and law enforcement simply provided the opportunity or the means. That is why the details of who first raised the idea, how quickly the defendant agreed, and how much pushing it took usually decide these cases.
Common Situations
Entrapment comes up most often where police use undercover officers or informants to arrange a crime, such as drug sales, solicitation stings, and online sting operations. In each, the key questions are the same: Who proposed the crime? How hard did the government push? And was the defendant already inclined to do it?
Why a Lawyer Matters
Entrapment cases turn on the record of what the government said and did: the messages, the recorded calls, the informant’s role, and how many times the request was made. Getting that evidence and presenting it so the jury sees the pressure, not just the result, takes preparation. I have defended criminal cases for 23 years. If you were charged after an undercover operation or a sting, contact my office or call 781-393-5900.
Related Topics
Criminal intent: the mental state the Commonwealth must prove for most crimes.
Duress: a different defense based on threats of harm, not government inducement.
This information is for general educational purposes only and not legal advice. Laws change. For advice about a specific case, speak with a licensed Massachusetts attorney.
