法律英语：21 Entrapment（在线收听）

by Michael W. Flynn
 
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Today I discuss entrapment. Derek from Minnesota wrote:

I've been listening to your podcast for a while and I don't believe you've covered the issue of "entrapment." Recently, a Minnesota woman was acquitted by reason of entrapment. As I understand it, entrapment is difficult to demonstrate. In this case, the defendant was a court victim advocate who sold confidential victim information to a third party for $180.

Derek, you are correct in your understanding that entrapment is difficult to prove because the defendant must show that he committed the crime due to government pressure, and had no predisposition to commit a crime.

Entrapment is the act of a law enforcement agent in inducing a person to commit an offence, which the person would not have, or was unlikely to have, otherwise committed. The Supreme Court has described this as “the line between setting a trap for the ‘unwary innocent’ and the ‘unwary criminal.’” First, the defendant must show that the government induced him to commit the crime, and then the government must show that the defendant was predisposed to committing the crime.

Law enforcement often uses sting operations (or “artifice and stratagem” as the Supremes call it) to catch criminals. Imagine the following: an undercover cop calls Mr. X, a known drug dealer in town, and arranges to go to his house and buy some pot. After the undercover cop buys the pot, he can arrest Mr. X. At trial, Mr. X might raise the defense of entrapment, which puts the burden on the government to show that Mr. X was disposed to commit the crime before the government, i.e. the undercover cop, intervened. In this situation, proving that would be pretty easy because Mr. X had sold drugs before, he had already acquired the drugs before he sold them to the undercover cop, and there would likely be strong evidence of a selling operation in the form of scales, jars, cash, etc. Also, the fact that Mr. X immediately complied with the request to sell is strong evidence that he must have been predisposed to committing the crime.

But contrast that with another story. Imagine that an undercover cop is crying outside a California pot club. Mr. Y asks the cop what is wrong, the cop tells Mr. Y that the pot club will not sell to him, and he needs the pot for his ailing mother who has cancer, and would Mr. Y please please please go in and buy the pot for him. After much cajoling, Mr. Y enters, buys a small amount of pot without a prescription, and then the undercover cop arrests him for buying pot without a prescription. The cops then search Mr. Y’s house, and find no drugs or drug paraphernalia, Mr. Y tests negative for pot in his system, and has a reputation in the community for being a straight-laced guy. In that situation, the government induced the crime, so Mr. Y can raise the entrapment defense. Mr. Y can persuasively argue that the government failed to show that he was predisposed to committing the crime because he was not seeking out pot, he had not expressed an interest in the pot, and the government used emotional pressure to induce the crime.

Looking at Derek’s example from Minnesota, entrapment seems valid. In the Minnesota case, an officer contacted the defendant who was an advocate for victims of violent crimes. The defendant handed over confidential witness and victim information only after the officer told the defendant that he was investigating real estate fraud. Initially, the defendant refused, but the undercover officer intentionally played on the defendant’s religious beliefs and questioned whether the defendant was a true friend and truly wanted to help. The defendant turned over the confidential records and was arrested.

The jury acquitted on the felony counts of bribery and aiding an offender. The jury heard arguments that the defendant was not predisposed to turning over confidential information, and only did so after the officer played on her emotional side, and convinced the defendant that turning over the information was helpful to society. This seems to fall squarely into entrapment. The defendant was not predisposed to turning over the information: she never had done so before, she only did so to help a supposed friend, and she did so after her religious convictions were called into question.

Overall, entrapment is rarely successful because it truly does require the “unwary innocent,” a true rarity. Most sting operations target people for whom the government already has some evidence of commission of a crime, so proving predisposition is easy.

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