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What Is Entrapment?

Masked cyber terrorist in military uniform hacking army intelligence "I'm not a cop, I swear."
By Andrew Leonatti on February 28, 2020 10:07 AM

"Hey man, I've got that really good stuff here. You know you want it."

You proceed to buy the drugs, but then your "dealer" reveals himself to be an undercover police officer.

"You can't do that, that's entrapment!" you shout at the cop.

Except, you probably don't really know what entrapment means — and you're going to jail.

Defining 'Entrapment'

Entrapment occurs when a government agent persuades or influences you to commit a crime that you otherwise would not have committed.

Entrapment is a defense that's commonly used in criminal cases, but not every defendant can claim entrapment. If you are going to use entrapment as a defense, you need to pay close attention to the italicized words in the definition above.

Government Agents

So, who can be considered a government agent?

In general, government agents include law-enforcement officers (local police officers, FBI officers, DEA officers, etc.) and anyone acting on the government's behalf. Civilians who work undercover as part of an official government investigation can be considered government agents for that investigation.

That means if your dealer gets busted and agrees to act as an informant for the police, your dealer is now a government agent when you're interacting with them.

But if a civilian who is not a government agent convinces you to buy or sell drugs, for example, an entrapment defense won't work if you are arrested.

Why Entrapment Probably Isn't a Good Defense

Okay, the undercover informant is a government agent, so that means you were entrapped, right?

Wrong. Don't forget about the second set of words in italics in that definition. In short, "that you otherwise would not have committed" means that entrapment will not be a strong defense if prosecutors can prove that you would have committed the crime anyway.

For instance, if you are arrested for selling drugs to an informant or undercover police officer, prosecutors will likely be able to make an easy argument that you would have sold drugs anyway before the government agents gave you the idea. This will also be true if you are arrested for trying to hire a prostitute if police catch you in a sting operation.

Remember: police can lie to you to get an arrest. If you ask someone if they are a cop first, they don't have to tell you the truth, and it's still not entrapment.

How the Entrapment Defense Might Work

State laws vary, but in general, there are two ways to prove entrapment:

  • By proving the defendant would not have committed the crime, but for the undue persuasion or fraud of a government agent
  • By proving that a government agent encouraged the crime in such a way that it created a risk that a person not inclined to commit the crime would commit it

That means if a government agent badgers you into committing a crime or threatens you with assault or some other consequence for not committing a crime, entrapment may actually be a good defense.

One such case is the Supreme Court's 1992 ruling in Jacobson v. United StatesThe court found that a man who ordered child pornography would not necessarily have done it, were it not for government agents consistently contacting him to order some over a period of several months.

In any case, determining whether entrapment is the right strategy to mount in your or a loved one's defense should be left to an experienced criminal defense attorney. They will have the experience needed to best protect your rights.

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