Page 42 Flashcards
What are the two types of fraud that can lead to consent issues?
- fraud in the factum
- fraud in the inducement
Can fraud in the factum ever lead to consent?
No
What is an example of fraud in the factum?
The doctor having sex with the patient and telling her it’s an operation
If you have sex with someone by pretending to be their husband, what does that do?
Makes the consent invalid, and you have committed rape
What is fraud in the inducement?
Misrepresentation about the benefits to be expected from a proposed act
Can fraud in the inducement ever create consent?
Yes
What is an example of fraud in the inducement?
Falsely promising to marry someone so they will have sex with you
What is entrapment?
Defense that the criminal act was the product of police action and not the intended result of the defendant
What are different ways that police can unfairly induce a defendant to commit a crime, and thus entrapment occurs?
- multiple requests
- forcing a personal relationship
- appealing to personal considerations
- representing benefits
- assisting in procuring contraband or planning details
Is the defense of entrapment available if the defendant is charged with a heinous or revolting crime?
Maybe not
What are the elements of entrapment?
- inducement by government official or informant
- defendant was not predisposed to commit a crime, or
- Government conduct would’ve induced a law abiding person to commit a crime
Entrapment must be committed by whom?
An officer/agent or someone knowingly acting on an officer’s behalf
According to the MPC, when is entrapment not available?
- when causing bodily injury is an element of the offense charged
- the prosecution is based on conduct causing/threatening such injury to a person other than the person perpetrating the entrapment
What are three types of entrapment?
- private entrapment
- vicarious entrapment
- derivative entrapment
What is private entrapment?
When a private person, on his own will, induces another to commit a crime
Is private entrapment considered criminal?
No, because it was induced from a private person, not a government official
What is an example of private entrapment?
If a PI ensnares a lot of people, that is just criminal solicitation, not entrapment
What is vicarious entrapment?
A private individual is induced by an undercover cop to get someone else to join in a scheme
What is the important caveat for vicarious entrapment?
The middle man must pass on the inducement in its unaltered form
What is derivative entrapment?
An undercover officer uses an unsuspecting middle man to pass on an inducement to a distant target
Who can use the entrapment defense in a derivative entrapment situation?
The distant target
If the middle man in a derivative entrapment situation didn’t know what was happening, does that stop the entrapment?
No
What is the caveat for derivative entrapment?
The inducement must be the same one, and directed at the same target that the government intended
What are the two approaches to entrapment?
- predisposition
- Government inducement
What is the majority approach to entrapment?
Pre-Disposition
If you are predisposed to commit a crime, and cops offer you an opportunity to commit it, has entrapment been committed?
No, police must have instigated the crime by originating the criminal plan and you must not have been likely to have done it otherwise
What is the two-step test for predisposition for entrapment?
- Was the offense induced by a government agent?
2. Was D predisposed to commit the crime?
What does it mean to be predisposed to commit a crime?
Ready and willing to commit the crime when the opportunity presents itself
If the defendant was predisposed to commit the type of offense, can entrapment be a defense?
No
If the government constructs a crime in the beginning to the end and would’ve induced a law abiding person to commit the crime, has there been entrapment?
Yes
What are the factors to consider when deciding if predisposition was present for entrapment?
- character/reputation of D
- prior criminal behavior
- statements about D’s attitude toward the offense
- D’s motive
- if crime was suggested by government
- D engaged in activity for profit
- D’s reluctance was overcome by persuasion
- nature of the inducement by government
The government inducement approach to entrapment is what kind of view?
Minority and MPC
What is the government inducement approach to entrapment?
Entrapment happens when the offense is induced by persuasion that creates a substantial risk the offense will be committed by people that were not predisposed
Is the government inducement approach a valid defense even if the defendant was predisposed to commit the crime?
Yes, if the police conduct was so outrageous it can’t be condoned by the court
What is an example of the government inducement approach to entrapment?
If an officer repeatedly offers to sell D drugs when he knows he’s a recovering addict, and D eventually succumbs
Why do defense lawyers prefer the government inducement test for entrapment?
Because the focus is on the government’s misconduct so evidence of defendant’s prior criminal conduct cannot be introduced
What is the rationale for the government inducement approach to entrapment?
The courts have a duty to control police excesses and intrusions into the lives of citizens
