Entrapment Defense

Question 1

If a defendant successfully proves the defense of entrapment, what happens?

Answer 1

The defendant is acquitted of the charges they face.

Question 2

What is the rationale of the entrapment defense?

Answer 2

1. The function of law enforcement is the prevention of crime and the apprehension of criminals. That function DOES NOT include the manufacturing of crime.
2. Congress could not have intended that its statutes were to be enforced by tempting innocent persons into violations.

Question 3

When does the government commit entrapment? See Sherman v. United States (U.S. 1958) on p. 776-77

Answer 3

The fact that government agents “merely afford opportunities or facilities for the commission of the offense” does NOT constitute entrapment. Entrapment occurs ONLY WHEN the criminal conduct “was the product of the CREATIVE activity” of police. To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal. On the one hand, at trial the accused may examine the conduct of the government agent; and on the other hand, the accused will be subjected to an “appropriate and searching inquiry into his own conduct and predisposition” as bearing on his claim of innocence.

Question 4

In Sherman, why did SCOTUS believe Sherman had established a valid entrapment defense? See Sherman on p. 777

Answer 4

1. The gov’s informer—believing that Sherman was undergoing a cure for narcotics addiction—nonetheless sought to persuade petitioner to obtain a source of narcotics for him.
2. One request was not enough; multiple requests by the informer were necessary to overcome Sherman’s refusal, then his evasiveness, and then his hesitancy in order to achieve capitulation.
3. Assured of a catch, the informer informed authorities so that they could “close the net.”
4. Although he was not being paid, the informer was an active gov informer who had recently been the instigator of at least 2 other prosecutions.

NOTE: SCOTUS concluded that these were not independent acts subsequent to the inducement, but rather part of a course of conduct which was the product of inducement.

Question 5

In Sherman, why did SCOTUS believe the gov’s argument to overcome entrapment by claiming that Sherman evinced a “ready compliasance” to accede to the informant’s request? Why were Sherman’s previous convictions involving narcotics not enough to overcome the defense either? See Sherman on p. 777-78

Answer 5

1. There was no evidence that Sherman himself was in the narcotics trade at the time.
2. When Sherman’s apartment was searched after arrest, no narcotics were found.
3. There was no significant evidence that Sherman even made a profit on any sale to the informant.
4. A 9-year-old narcotics conviction and a 5-year-old possession conviction are insufficient to prove that Sherman had a readiness to sell narcotics at the time the informer approached him, “particularly when we must assume that Sherman was trying to overcome the narcotics habit at the time.”

NOTE: The informant met Sherman by chance at doctors appointments for a cure for narcotics addiction.

Question 6

How did SCOTUS define entrapment in Jacobson v. United States (U.S. 1992) on p. 784-85?

Answer 6

The gov may use undercover agents to enforce the law. However, in their zeal to enforce the law, gov agents MAY NOT originate a criminal design, implant an innocent person’s mind the disposition to commit a criminal act, and then induce the commission of the crime so that the gov may prosecute.

Where the gov has induced an individual to break the law and the defense of entrapment is at issue, the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act PRIOR to first being approached by Gov agents (rational jurors must be able to say beyond a reasonable doubt that the defendant possessed the requisite predisposition PRIOR to the gov’s investigation and that it existed INDEPENDENT of the gov’s many and/or varied approaches to the defendant).

NOTE: Evidence of predisposition to do what once was legal is NOT—by itself—sufficient to show predisposition to show what is currently illegal. Furthermore, a person’s inclinations and fantasies are his own and beyond the reach of the government.

Question 7

What is the “outrageous conduct” due process defense that is akin to entrapment? See Hampton v. U.S. (U.S. 1976) on p. 791

Answer 7

The limitations of the DP Clause of the 5th Amendment come into play ONLY WHEN the gov activity in question violates some protected right of the defendant. In evaluating whether the State’s conduct violated DP, lower courts focus on the State’s behavior and NOT the defendant’s predisposition. Key factors include:

1. Whether the police conduct instigated a crime or merely infiltrated ongoing criminal activity;
2. Whether the defendant’s reluctance to commit a crime was overcome by pleas of sympathy, promises of excessive profits, or persistent solicitation;
3. Whether the government controls the criminal activity or simply allows for the criminal activity to occur;
4. Whether the police motive was to prevent crime or protect the public;
5. And whether the government conduct itself amounted to criminal activity or conduct “repugnant to a sense of justice”

NOTE: A recent rule in lower federal courts is that only gov conduct that “shocks the conscience” can violate DP.