Product Code Database
Entrapment is a practice in which a law enforcement agent or an agent of the state induces a person to commit a crime that the person would have otherwise been unlikely or unwilling to commit. Sloane (1990) 49 A Crim R 270. See also agent provocateur In US law, it is defined as "the conception and planning of an offense by an officer or agent, and the procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer or state agent".
Police conduct rising to the level of entrapment is broadly discouraged and thus, in many jurisdictions, is available as a defense against criminal liability. Sting operations, through which police officers or agents engage in deception to try to catch persons who are committing crimes, raise concerns about possible entrapment.Missouri Law Review, Volume 70, Issue 2, Spring 2005: Sting Operations, Undercover Agents and Entrapment: by Bruce Hay http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=3652&context=mlr
Depending on the law in the jurisdiction, the prosecution may be required to prove beyond a reasonable doubt that the defendant was not entrapped or the defendant may be required to prove that they were entrapped as an affirmative defense.
In the practice of journalism and whistle-blowing entrapment means "deceptive and trust-breaking techniques ... applied to trick someone to commit a legal or moral transgression."
The 1828 edition of Noah Webster's American Dictionary of the English Language defines entrap as:
There are two different forms of entrapment in Canadian law.
The question of entrapment is considered only after there has been a finding of guilt. If, after finding the accused guilty, the court determines that the accused was entrapped, the court enters a judicial stay of proceedings. That is similar to an acquittal.
It was the first time entrapment had been successfully argued in a terrorism case. Three previous attempts failed.
In the case of persons who are not initially under suspicion and unlikely to commit a certain crime, a decision from 1999 "18th of November, BGH 1 StR 221/99", in German stated that entrapment of such persons violates the right to a fair trial, and the punishment for the committed offense may thus be reduced.
In Loosely, Lords Hoffman and Hutton indicated certain factors that should be considered in deciding whether proceedings against a defendant should be stayed:
It has been held that it is generally acceptable for the police to conduct test purchases ( DPP v. Marshall) or pose as passengers to catch unlicensed taxi drivers ( Nottingham City Council v. Amin).
Historically, entrapment was common in the eighteenth and nineteenth century, and was used frequently by the Bank of England and Royal Mint to catch people involved in currency crime during the Restriction Period of 1797–1820.
Entrapment by plainclothes policemen was often used to prosecute gay men, even after the Sexual Offences Act 1967 exempted consensual gay sex in private from prosecution.
Contrary to popular belief, the United States does not require police officers to identify themselves as police in the case of a sting or other undercover work, and police officers may lie when engaged in such work. The law of entrapment instead focuses on whether people were enticed to commit crimes they would not have otherwise considered in the normal course of events.
Courts took a dim view of the defense at first. The New York Supreme Court said in 1864 that "It has never availed to shield crime or give indemnity to the culprit, and it is safe to say that under any code of civilized, not to say Christian, ethics, it never will". Board of Commissioners v. Backus, 29 How. Pr. 33, 42 (1864) cited in A fuller quote includes a reference to original sin. Even if inducements to commit crime could be assumed to exist in this case, the allegation of the defendant would be but the repetition of the plea as ancient as the world, and first interposed in Paradise: "The serpent beguiled me and I did eat." That defense was overruled by the great Lawgiver, and whatever estimate we may form, or whatever judgment pass upon the character or conduct of the tempter, this plea has never since availed to shield crime or give indemnity to the culprit, and it is safe to say that under any code of civilized, not to say Christian ethics, it never will. Forty years later, another judge in that state affirmed that rejection, arguing "courts should not hesitate to punish the crime actually committed by the defendant" when rejecting entrapment claimed in a grand larceny case.People v. Mills , 70 N.E. 786, 791 (N.Y. 1904), cited at Lord, supra.''
Other states, however, had already begun reversing convictions on entrapment grounds.See John D. Lombardo, "Causation and 'Objective' Entrapment: Toward a Culpability-Centred Approach", 43 UCLA L. REV. 209, 219-20 (1995). See, e.g., People v. McCord, 42 N.W. 1106 (Mich. 1889) Federal courts recognized entrapment as a defense starting with Woo Wai v. United States. Woo Wai v. United States Chin, Gabriel J., " The Story of Jacobson v United States: Catching Criminals or Creating Crime? ", Arizona Legal Studies Discussion Paper N. 06-12, February 2006, retrieved 10 August 2006, 39. This draft is described as a chapter in the author's forthcoming Criminal Law Stories. The U.S. Supreme Court declined to consider the question of entrapment in Casey v. United States, Casey v. United States since the facts in the case were too vague to definitively rule on the question; but, four years later, it did. In Sorrells v. United States, the Supreme Court unanimously reversed the conviction of a North Carolina factory worker who gave in to an undercover Prohibition officer's repeated entreaties to get him some liquor. It identified the controlling question as "whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials". Sorrells v. United States, 287 U.S. 435, 451.
In Sherman v. United States, Sherman v. United States the Court considered a similar case in which one recovering Addiction working with agents of the Federal Bureau of Narcotics (a predecessor agency to today's Drug Enforcement Administration (DEA)) solicited another to sell him drugs on the premise that his own efforts were failing. Again unanimous, its opinion focused more clearly on the defendant's predisposition to commit the offense and, on that basis, overturned Sherman's conviction as well since, although he had two prior drug convictions, the most recent dated back five years. Furthermore, he was attempting to rehabilitate himself, he had made no profit on the sales, and no drugs were found in his apartment when it was searched, suggesting the absence of a predisposition to break drug laws. "To determine whether entrapment has been established", it said, "a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal". Sherman v. United States, 356 U.S. 369, 375.
Prosecutors won the next two times entrapment came before the Court, in United States v. Russell United States v. Russell and Hampton v. United States, Hampton v. United States albeit by narrow margins. In the former, the Court upheld the conviction of a Washington man for manufacturing methamphetamine even though an undercover agent had supplied some of the ingredients, and also pondered an outrageous government conduct defense, though it did not enable it. Hampton let stand, by a similar margin, the conviction of a Missouri man who had, upon seeing on the arms of a DEA informant, expressed interest in obtaining heroin to sell. The DEA informant arranged a meeting between the Missouri man and undercover DEA agents in which the Missouri man sold a small quantity of heroin to agents and indicated that he could obtain larger quantities. After a second sale to the undercover agents, he was arrested. The defendant alleged that the informant supplied the drugs and that he had been led to believe, by the informant, that he was not selling heroin but a counterfeit with which he intended to defraud the buyers. Regardless, the Court found he was sufficiently predisposed to sell heroin so as to be criminally liable.
The argument employed in the majority opinion on Hampton became known as the "subjective" test of entrapment, since it focused on the defendant's state of mind. However, in all cases, concurring opinions had advocated an "objective" test, focusing instead on whether the conduct of the police or other investigators would catch only those "ready and willing to commit crime". Sorrells, Id., 287 U.S. at 384 (Frankfurter, J., concurring. Under the objective approach the defendant's personality (i.e., his predisposition to commit the crime) would be immaterial, and the potential for the police conduct to induce a law-abiding person considered in the abstract would be the test. This, supporters argued, avoided the dubious issue of an unexpressed legislative intent on which the Sorrells court had relied and instead grounded the entrapment defence, like the exclusionary rule, in the court's supervisory role over law enforcement. And like the exclusionary rule, they would have had judges, not juries, decide whether a defendant had been entrapped as a matter of law.Chin, p. 6, citing Marcus, Paul, The Entrapment Defence.
Since the subjective test focusing on predisposition had, unlike the exclusionary rule, not been applied to the states, they were free to follow it as they saw fit. The state courts or legislatures of 37 states have chosen the subjective test, while the others use the objective test. Some have allowed both the judge and the jury to rule on whether the defendant was entrapped.
In the Supreme Court's last major ruling on entrapment, Jacobson v. United States, Jacobson v. United States which overturned the conviction of a Nebraska man for receiving child pornography via the mail, the subjective vs. objective debate was completely absent. Both the majority and dissenting opinions focused solely on whether the prosecution had established that the defendant had a predisposition for purchasing such material (which had only recently been outlawed at the time of his arrest). Since no other material was found in his home save what he had purchased from the undercover postal inspectors, Justice Byron White believed the operation had implanted the idea in his mind through mailings decrying politicians for assaulting civil liberties by passing laws such as the one the inspectors hoped he would break. Justice Sandra Day O'Connor disagreed in her dissent, arguing that the record did indeed establish that Jacobson was interested in continuing the purchases.
As described in United States v. Howell, United States v. Howell, 37 F.3d 1197, 1204 (7th Cir. 1994) the defense "applies when, acting with actual or apparent authority, a government official affirmatively assures the defendant that certain conduct is legal and the defendant reasonably believes that official".
The entrapment by estoppel defense exists in both federal and city jurisdictions; however, case law remains inconsistent as to whether the misleading advice of e.g. a state official provides protection against federal criminal charges. Examples exist of an appellate court failing to allow an entrapment by estoppel defense where a municipal official provided misleading instructions regarding a state law.
The federal entrapment defense is based upon statutory construction, the federal courts' interpretation of the will of Congress in passing the criminal statutes. As this is not a constitutional prohibition, Congress may change or override this interpretation by passing a law.
|
|
