What Is the Entrapment Defense?

Definition, Standards, Cases

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Entrapment is a defense used in criminal court when a government agent has induced a defendant to commit a crime. In the U.S. legal system, the entrapment defense serves as a check on the power of government agents and officials.

Key Takeaways: Entrapment Defense

  • Entrapment is an affirmative defense that must be proved by a preponderance of the evidence.
  • In order to prove entrapment, a defendant must first show that a government agent induced the defendant to commit a crime.
  • The defendant must also show that he or she was not predisposed to commit the crime prior to government intervention.

How to Prove Entrapment

Entrapment is an affirmative defense, which means that the defendant carries a burden of proof. It can only be used against someone who works for a government body (e.g. state officers, federal officers, and public officials). Entrapment is proved by a preponderance of the evidence, which is a lower burden than reasonable doubt.

In order to prove entrapment, a defendant must show that the government agent induced the defendant to commit a crime, and that the defendant was not predisposed to engage in criminal conduct.

Offering the defendant an opportunity to commit a crime is not considered inducement. For example, if a government agent asks to buy drugs, and the defendant readily gives the officer illegal substances, the defendant has not been entrapped. In order to show inducement, a defendant must prove that the government agent persuaded or coerced them. However, inducement does not always have to be threatening. A government agent might make a promise so extraordinary in exchange for a criminal act that a defendant cannot resist the temptation.

Even if a defendant can prove inducement, they must still prove that they weren’t predisposed to commit the crime. In an effort to argue against entrapment, the prosecution might use the defendant’s prior criminal acts to persuade the jury. If the defendant does not have a past criminal record, the prosecution’s argument becomes more difficult. They might ask the jury to determine the defendant's state of mind prior to committing the induced offense. Sometimes, the judge and jury might consider the defendant's eagerness to commit the crime.

Entrapment Defense: Subjective and Objective Standards

Entrapment is a criminal defense, which means it comes from common law, not constitutional law. As a result, states can choose how they want to apply entrapment defenses. There are two applications or standards that states commonly adopt: subjective or objective. Both standards require the defendant to first prove that government agents induced the crime.

Subjective Standard

Under the subjective standard, jurors consider both the actions of the government agent and the defendant’s predisposition to commit the crime in order to determine which was the motivating factor. The subjective standard shifts the burden back to the prosecution to prove that the defendant was predisposed to commit the crime beyond a reasonable doubt. This means that if the defendant wants to prove entrapment, the government agent’s coercion must be so extreme that it is clearly the main reason for committing the crime.

Objective Standard

The objective standard asks jurors to determine if the actions of an officer would have led a reasonable person to commit a crime. The mental state of the defendant does not play a role in objective analysis. If the defendant successfully proves entrapment, they are found not guilty.

Entrapment Cases

The following two cases offer useful examples of entrapment law in action.

Sorrells v. United States

In Sorrells v. United States (1932), the Supreme Court recognized entrapment as an affirmative defense. Vaughn Crawford Sorrells was a factory worker in North Carolina who allegedly smuggled alcohol during prohibition. A government agent approached Sorrells and told him that he was a fellow veteran who had served in the same division during World War I. He repeatedly asked Sorrells for liquor, and at least twice Sorrells said no. Eventually, Sorrells broke down and left to get whiskey. The agent paid him $5 for the alcohol. Prior to that sale, the government had no solid evidence that Sorrells had ever smuggled alcohol in the past.

The Court ruled that Sorrells’ attorneys could use entrapment as an affirmative defense. In a unanimous opinion, Justice Hughes wrote that the crime “was instigated by the prohibition agent, that it was the creature of his purpose, that defendant had no previous disposition to commit it but was an industrious, law-abiding citizen.” The lower court should have allowed Sorrells to argue entrapment before a jury.

Jacobson v. United States

Jacobson v. United States (1992) dealt with entrapment as a matter of law. Government agents began to pursue Keith Jacobson in 1985 after he bought a copy of a magazine with nude photographs of minors. The purchase occurred before Congress passed the Child Protection Act of 1984. Over the course of two and a half years, government agents sent fake mailings from multiple organizations to Jacobson. In 1987, Jacobson ordered an illegal magazine from one of the government's mailing and picked it up at the post office.

In a narrow 5-4 ruling, the Court majority found that Jacobson had been entrapped by government agents. His first purchase of child pornography could not show predisposition because he bought the magazine before it was illegal. He made no attempts to break the law prior to receiving the government’s fake publications. The court argued two and a half years of persistent mailings prevented the government from showing predisposition.

Sources

  • Sorrells v. United States, 287 U.S. 435 (1932).
  • Jacobson v. United States, 503 U.S. 540 (1992).
  • “Criminal Resource Manual - Entrapment Elements.” The United States Department of Justice, 19 Sept. 2018, www.justice.gov/jm/criminal-resource-manual-645-entrapment-elements.
  • “The Criminal Defense of Entrapment.” Justia, www.justia.com/criminal/defenses/entrapment/.
  • Dillof, Anthony M. “Unraveling Unlawful Entrapment.” The Journal of Criminal Law and Criminology, vol. 94, no. 4, 2004, p. 827., doi:10.2307/3491412.
  • “Criminal Resource Manual - Entrapment Proving Predisposition.” The United States Department of Justice, 19 Sept. 2018, www.justice.gov/jm/criminal-resource-manual-647-entrapment-proving-predisposition.