What is “entrapment”?

I run into situations on the regular, wherein clients say that the cops entrapped them into committing a crime. I always grimace, because they are probably right to a degree. But because of the way the law of entrapment is designed, entrapment is very hard to prove.

Entrapment occurs when a law enforcement officer (LEO) or an agent of an LEO (i.e. a snitch) uses pressure to make a person do something illegal, when that person was not predisposed to doing that illegal thing. There is a jury instruction on the issue that spells it all out, and goes on to say that it is not entrapment if LEOs simply provide a defendant an opportunity to commit a crime, and the defendant takes that opportunity of his or her own volition.

The big fat problem we always run into is the “not predisposed” issue. If a cop or a snitch calls my 82-year-old mother, and badgers her and cajoles her so much that finally she relents and commits a crime, we have a problem. My mother has never done anything immoral or questionable, let alone illegal. So she is not “predisposed” to committing a crime.

By contrast, consider the situation that we see most frequently. Drug deals, for example. If a defendant has previously sold to a LEO or snitch, or is regularly selling to others, then it is difficult to allege that he or she was not “predisposed” to committing a crime. In other words, this defense generally works only for those who are as pure as the driven snow.

But, you never know. That’s why all attorneys answer questions with, “it depends.” If you think you have been entrapped, come see me. Over the years, we have used telephone records, eyewitnesses, and other creative ways to show that law enforcement actually did indeed entrap our clients.

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