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The entrapment defense has received wide public attention in many prosecutions ranging from drug sales, to public corruption, to financial crimes. The defense is very significant, for the criminal defendant successfully raising entrapment will have all charges dismissed if a showing is made that the government was improperly involved in the creation of the criminal activity. Entrapment has been controversial in the United States since its inception. Some individuals view the defense as imposing improper judicial or legislative restrictions on effective law enforcement investigative techniques. Others would expand the defense in order to ensure that individuals’ rights in the criminal justice system are preserved.
Most of the usual defenses in criminal cases have long traditions, dating back to the early English common law. Claims such as duress, self-defense, and insanity have been litigated for hundreds of years in both England and the United States. The defense of entrapment does not have roots traceable back to English common law. Rather, the entrapment defense developed in the United States in the early part of the twentieth century. Judges were tentative then, but began to offer outlines of the defense in a series of cases involving quite egregious overreaching by law enforcement officers. Perhaps the most important early statement concerning entrapment was made by a famous Justice of the U.S. Supreme Court, Louis Brandeis, when he commented in the case of Casey v. United States:
The Government may set decoys to entrap criminals. But it may not provoke or create a crime and then punish the criminal, its creation . . . this prosecution should be stopped, not because some right of [the defendants] has been denied, but in order to protect the Government. To protect it from illegal conduct of its offices. To preserve the purity of its courts.
By the middle of the century the defense was well established, with the Court issuing several opinions explaining the rationale and procedures for it.
In more recent times, the defense has provoked an intense debate centering on the proper balance in the criminal justice system. That is, some government officers have emphasized the need for strong tools to be given to law enforcement officers in the investigation and prosecution of crime. At the same time, other criminal justice professionals have been concerned with the preservation of individual rights of criminal defendants in the criminal justice system. The entrapment defense brings into sharp focus both points of view, as all have recognized that the infiltration of and participation in criminal endeavors by law enforcement can be an important component in the effort to prosecute widespread conspiracies. The Supreme Court has always indicated that such approaches by the government are ‘‘recognized as permissible means of investigation.’’ Especially in combating crimes involving narcotics and white collar offenses, close involvement by law enforcement may well be crucial.
The Two Approaches to Entrapment
A division exists in the United States regarding the manner in which the entrapment defense should be applied. Most state courts, and the federal courts, use the so-called subjective test, which looks principally to the state of mind of the individual. These jurisdictions find the entrapment defense is based on a belief that legislators, in identifying criminal behavior in criminal codes, could only have intended to sanction individuals who would have committed a crime without the major inducement of government agents. The point of the subjective test, then, is to make sure that otherwise innocent persons will not be lured into criminal activity by government overinvolvement. Because the evidence with respect to the particular individual defendant is the central theme of the entrapment, this form of the defense is viewed as subjective.
Other states, including some of the largest, such as California, Texas, and Michigan, use the so-called objective test. These jurisdictions reject the position of the subjective test proponents as to the legislative intent. Instead, the theory here is that the entrapment defense was created in order to impose responsible limitations on the actions of government agents in investigating and prosecuting criminal behavior. With this test, the courts scrutinize the level of government involvement in the criminal actions to determine if the officers acted in such a way that they would, in a usual case, affirmatively create crime where none would have existed without their actions. The individual state of mind of the defendant is not material in these states, hence the term objective is used.
One might well ask why similarly situated states—and the federal courts—can use such different applications of the entrapment defense. The answer is that most defenses in criminal cases are not constitutionally based; rather, they result from common law use or legislative enactment. As a consequence, states have been permitted under the U.S. Constitution to adopt whichever versions of criminal justice defenses are perceived as most appropriate. This difference in the adoption of defenses can be seen vividly with distinctive applications of the insanity defense, and even of self-defense. As to entrapment, the federal courts use the subjective approach, which results from judicial—rather than legislative—initiative. In some states, the legislature has enacted specific statutes covering the entrapment defense; in others, the defense has been developed, as in the federal courts, through judicial opinions.
The Subjective Test
As noted earlier, in the jurisdictions that utilize the subjective test, the key consideration is the defendant’s state of mind. The principal question asks whether this individual was disposed to commit the crime before any involvement by the government. Still, in all jurisdictions following the subjective approach, in order to prevail the defendant must also show that a government agent induced him to commit the offense charged. If the defendant offers sufficient evidence of such inducement, the government must then demonstrate, beyond a reasonable doubt, that he was predisposed to commit the crime prior to the time of the government contact.
The inducement requirement for defendants is not often a major hurdle. Generally, the defendant has to prove more than the fact that an opportunity was offered by the government. It is not enough to show a mere request to buy or sell narcotics or stolen goods. The standard in most courts is that the evidence of inducement is high enough so that an innocent party in response to such government behavior might have engaged in illegal activities. One court wrote that the requirement is satisfied if the inducement creates ‘‘a substantial risk that the offense would be committed by a person other than one ready to commit it.’’ Sufficient acts of inducement would include repeated requests by the government agent or a large financial incentive offered to the defendant.
Both in statutory form and in judicial practice, predisposition is the more difficult element. The government has to persuade the trier of fact that, even though it induced the defendant to act, the defendant was inclined to commit this sort of crime prior to such government contact. The proof problems regarding predisposition can be especially thorny, for the jury is being asked to evaluate an individual’s state of mind before any crime was committed. The prosecution is given wide discretion in offering evidence of the defendant’s predisposition. Similar crimes committed previously by a defendant are normally not allowed in evidence in a criminal prosecution to prove that person’s guilt. The concern here is that the limited probative value of such earlier crimes will be outweighed by the undue weight jurors will attach to such prejudicial evidence. If, however, the defendant raises an entrapment defense, these prior acts generally are admissible. The defendant has challenged the government’s proof as to her mental state, so the prior crimes help to indicate that the individual was predisposed to act unlawfully. Such prior crimes may include the purchase or sale of drugs, the ordering of obscene materials, or the commission of financial crimes.
The government may also demonstrate predisposition by offering proof that with a relatively modest inducement, the defendant responded eagerly and quickly to an offer to participate in a criminal action. This evidence, it is argued, shows that the defendant was inclined to act unlawfully, as she did not hesitate in response to the government agent’s act of inducement or solicitation. Some judges, however, are less inclined to weigh heavily the ready response of the defendant. Instead, they look to whether the person had sufficient ability and experience on her own such that she not only would have attempted to commit the crime without the government involvement, but that she would likely have been successful in doing so. This debate over the evidence surrounding the defendant’s response has not yet been resolved by the Supreme Court.
Questions regarding the subjective test for entrapment are normally argued to the jury. As a general matter, issues as to motive and intent traditionally are given to the jury throughout our criminal justice system. With the subjective approach to entrapment, the ultimate question of predisposition is seen as especially appropriate for jurors. In two instances, however, the matter will be resolved by the judge. The first involves the case in which the evidence of the defendant’s state of mind is so certain that no reasonable person could conclude that the defendant lacked predisposition prior to the government contact. Even if the government inducement is heavy, there is no doubt of the defendant’s great willingness to commit the offense as charged. In short, the evidence is so clear this person would have committed the crime without the governmental action that the judge should resolve this issue. To be sure, the Supreme Court has applied this doctrine in cases in which agents were active participants in the sale and purchase of illegal drugs, finding no entrapment because of the evidence of predisposition.
The second situation in which jurors will not decide the entrapment claim is quite different. If the judge concludes that no juror could find beyond a reasonable doubt that the defendant was predisposed, entrapment as a matter of law has been found and the prosecution must be terminated. The most famous Supreme Court decision evaluating evidence of entrapment dealt with the latter circumstance of entrapment as a matter of law. In this case, undercover U.S. postal investigators, over a prolonged two-year period, repeatedly wrote to the defendant criticizing the government’s obscenity policy, encouraging the defendant to challenge the policy, and urging him to exercise his freedom of speech. Indeed, on numerous occasions, they explored with the defendant his interest in child pornography. When the agents finally made a concrete solicitation to send him pornographic materials through the mail, the defendant—a Nebraska farmer—immediately responded, and placed an order. The agents then mailed him the magazine and he was convicted of receiving illegal, obscene written matter through the federal mail system. The defendant raised an entrapment defense at trial, but the jury rejected it, presumably relying on his ready response to the ultimate solicitation. The Supreme Court, however, held that the case should have been dismissed, as there was insufficient evidence of criminal predisposition prior to the government’s protracted and intense contact with the defendant. The defendant had never engaged in prior illegal activity, sexual written materials found in his home were legal when ordered, and it took more than a two-year period of inducement before any particular solicitation was offered. The Justices concluded that a reasonable doubt necessarily existed as to this person’s alleged predisposition to commit unlawful acts. In addition, the Court was sharply critical of the postal undercover operation:
When the Government’s quest for convictions leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the Court should intervene. ( Jacobson v. United States, 503 U.S. 540, 553–54 (1992).
The Objective Test
The states that have adopted the objective test for entrapment do not look to the actions or motivations of the individual offender. Instead, they are far more concerned with the nature of the government’s participation in the criminal endeavor. In these states, the entrapment defense is used to determine whether police conduct has fallen below standards for the proper use of law enforcement power. The question here, therefore, does not go to any one person’s state of mind at any particular time. Rather, the test used is whether the government action would have caused ‘‘a normally law-abiding person to commit the offense.’’ Some states in applying this test allow the judge to make the determination as a matter of law either during a trial, or at a pretrial hearing. Other states ask jurors to consider whether the behavior of the police was appropriate under the circumstances. In almost all states following the objective approach, the burden of proof is on the defendant, not the prosecution; the key question is whether the behavior of the government has demonstrated the need for the application of a strong public policy to deter instigation of crime by the government in order to get a conviction. Cases in which improper government action was found include excessive financial inducements, sexual favors given to the suspect, and exploitation of special emotional problems of the defendant. In such cases, the conclusion has been reached that the government simply has gone too far in creating crime rather than in detecting it.
The due process clause of the Fourteenth Amendment of the U.S. Constitution sets forth a minimal standard for government behavior in the criminal justice system. The clause has been used in a variety of contexts involving the investigation and prosecution of crime. In the most prominent case, Rochin v. California, the Supreme Court used the due process analysis to invalidate a search and seizure in which police officers required the defendant to undergo a medical stomach-pump procedure. The Court concluded that such a requirement was an affront to even the most rigid supporters of police force. Even though strong evidence of crime was found, the evidence was excluded from trial because of the improper actions of the police.
Many lawyers have argued forcefully that such due process considerations must be used in the entrapment setting as well. If the government involvement is too great or intense, the defendant’s conviction would need to be set aside, wholly apart from the application of the entrapment defense. This situation arises where the government action was extreme, but the defendant was also predisposed to commit the crime.
Not all believe that the due process analysis should apply in the entrapment context, where the focus is not on shocking behavior, but rather on over-involvement by law enforcement. Some judges question whether any sort of principled determination could be brought to bear on the numerous fact patterns present in this setting. Most judges, however, believe that the constitutional basis for the due process analysis would require its application in those relatively few cases involving clearly unacceptable government conduct. The Supreme Court has never reached a decision based upon due process considerations in the entrapment area, though several of the Justices have referred to the claim as one that could be raised in the appropriate case.
The leading federal opinion using the due process analysis, United States v. Twigg, involved government agents fully immersed in establishing and operating a drug laboratory; in addition, they strongly encouraged the criminal behavior of the defendants. The federal circuit judges reversed the defendants’ drug convictions, noting that such convictions would violate ‘‘fundamental fairness’’ because the government agents had truly been the lead figures in the criminal enterprise. State judges, too, apply the due process analysis, though more often under state—rather than federal—constitutional principles. When a finding of ‘‘egregious police conduct’’ has been made, judges in a number of states have applied their own constitutional standards to invalidate the underlying criminal convictions.
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