Can I Use Entrapment as a Defense?

Can I Use Entrapment as a Defense?

Entrapment occurs when a police officer uses coercion or overbearing tactics to get someone to commit a crime. If you committed a crime because a police officer — whether in uniform, plain clothes or undercover — threatened you, hounded you, used physical force to compel you, or implied that harm would come to you or someone else if you did not commit the crime, then you may have a valid entrapment defense.

For example, if an undercover cop approaches a person who had a stash of marijuana for personal consumption and pleaded and cajoled that person to sell them some marijuana and did this every day until the person gave in and sold marijuana to the undercover cop, that would be a form of coercion. Most likely, that person could use the entrapment defense. Or, in a case in which an undercover cop forces someone to act as lookout for a robbery or other crime by threatening to harm them or a family member, such a situation could also warrant an entrapment defense. Finally, providing the instrumentalities for committing the crime can provide for an entrapment defense, such as when a cop supplies drugs to someone, persuades them to sell those drugs to another person and then arrests that first individual for selling drugs.

It is not enough to claim entrapment if the cop merely asked you to do something illegal. He or she must coerce or force you in some way. Otherwise, it is simply "ordinary temptation," and courts expect people to be able to resist ordinary temptation. The key question in an entrapment case is would the defendant have committed the crime if not coerced. Alternatively, courts will ask whether the defendant was "predisposed" to commit the crime and if the police merely provided an opportunity to do so. If the marijuana user in the first example had a prior conviction on drug distribution or the robbery lookout was someone who had committed robberies before, then it would be much harder to convince a jury that entrapment occurred because the defendant had committed similar or related crimes in the past without coercion from a police officer.

How to Use an Entrapment Defense

The tricky thing about an entrapment defense is that it is up to the defendant to prove that entrapment occurred. Entrapment is an affirmative defense, which means the defendant is saying, "Yeah, I committed the offense but only because the cop forced me to do it." The danger of such a defense is that failure to prove that entrapment occurred results in an almost automatic conviction.

The elements vary depending on the jurisdiction, but generally in order to prove entrapment, a defendant must present evidence and testimony to show the following:

  1. The officer used coercion or was overbearing in convincing the defendant to commit the crime
  2. The officers coercion would have provoked an ordinarily innocent person to commit the crime
  3. The defendant was not predisposed to commit the crime

That last point needs some clarification. In Wyoming and Montana, state law requires that the defendant not be predisposed to committing the crime in order for an entrapment defense to be valid. That means the defendant must not be inclined or likely to commit such a crime. A person with prior convictions on similar charges or who had previously expressed desire to commit a similar crime or had engaged in similar conduct could be said to be predisposed.

Entrapment is often proven through testimony of witnesses. This could include someone who overheard or saw the officer being coercive. It could also include someone who knew the defendant well and could testify to the defendant's character. Lack of an arrest record or an arrest record lacking convictions or suspicion of similar crimes is also helpful. A video or audio recording of the officer being coercive or threatening would be a particularly strong piece of evidence.

Our Experienced Criminal Defense Lawyers can Help You Build an Effective Entrapment Defense

The criminal defense attorneys at Stinson Law Group have extensive experience building strong defense cases for people wrongly charged with crimes. If you've been wrongly charged with a crime because an officer entrapped you or for any other reason, Stinson Law Group can help you protect your rights and minimize the damage from your charges. In some cases we can even get charges dropped altogether. Call the criminal defense lawyers at Stinson Law Group toll free today for a free consultation:(888) 527-6090.

Categories: Criminal Defense

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