Entrapment is a defense to criminal charges on the basis that the defendant only committed the crime because of harassment or coercion by a government official. Without such coercion, the crime would never have been committed. Entrapment can be a difficult defense to assert because it requires the defendant to establish that the idea and impetus for the crime was introduced by government officials, and the defendant was not already willing or predisposed to commit the crime. It is also important to note that entrapment can only occur with a government official, such as an FBI official or a police officer, not a private individual. Additionally, since it is an affirmative defense, the criminal defendant has the burden of establishing that entrapment occurred.
In order to find and eliminate criminal behavior, law enforcement officers are allowed to engage in sting operations, whereby they create circumstances that allow individuals to take criminal actions that they can then be arrested and prosecuted for. These are considered “opportunities” for individuals believed to be involved in criminal behavior to commit crimes. An opportunity is considered very different from entrapment and involves merely the temptation to violate the law, not being forced to do so.
Unlike creating an opportunity, entrapment occurs when law enforcement officers urge, harass, or otherwise overly encourage an individual to commit a crime when he or she would not otherwise do so. Entrapment may result from the use of threats, intimidation, extended fraud, or any other means where the defendant was essentially forced to commit a crime.
For example, law enforcement officers could set up a sting operation for a suspected criminal to commit a burglary. This might involve a law enforcement officer pretending to be a fellow criminal and alerting the defendant of a warehouse shipment that will be arriving shortly and will not be protected by security. If the defendant completes the burglary on the basis of this information, this is not entrapment. The officers have merely created an opportunity for the defendant to commit the crime, and their efforts to do so were entirely legal. If however, the undercover law enforcement officer threatens that the defendant needs to commit the burglary for him, or he will be punished, or shows up every day and harasses the defendant to commit the burglary even though the defendant does not appear interested, this could amount to entrapment. It goes beyond providing an opportunity and involves efforts by law enforcement to force the burglary to occur.
States employ either an objective or a subjective standard to determine whether entrapment occurred.
Objective standard. Under an objective standard, when defendants offer entrapment evidence jurors decide whether a police officer’s actions would have induced a normally law-abiding person to commit a crime.
Subjective standard. Entrapment defenses are less likely to succeed under a subjective standard. The reason is that under a subjective standard, when a defendant offers entrapment evidence, jurors decide whether the defendant’s predisposition to commit the crime makes the defendant responsible for his or her actions, regardless of any government agent’s inducements.
Entrapment law is a leash intended to curb outrageous conduct by police officers and other public officials. An entrapment defense does not arise if private individuals convince defendants to commit crimes. For example, in the scenario involving Jim and Snitch, assume that Snitch is a private person and not an undercover government agent. In that case, Snitch’s actions could not constitute entrapment under either an objective or a subjective standard.
Entrapment is an affirmative defense. Thus, defendants have the burden of convincing jurors “by a preponderance of the evidence” that government agents’ actions rose to the level of entrapment. In a state that employs an objective test of entrapment, a conclusion that entrapment took place results in a not guilty verdict. In a state that employs a subjective test of entrapment, a conclusion that entrapment took place results in the burden of proof shifting back to the prosecution to prove beyond a reasonable doubt that the defendant is guilty because the defendant’s predisposition to commit the crime — not the government agent’s actions — prompted the defendant to commit the crime.
Police conduct which constitutes entrapment includes:
What Constitutes Undue Pressure By A Police Officer?
Offering substantial compensation.
Appealing to your sense of fairness and compassion.
Flattering you or asking for sympathy or friendship
What Types Of Fraudulent Assurance Constitute Entrapment?
Assurances that you will not be caught
Assurances or guarantees that the conduct is legal under the circumstances
Offer of substantial compensation
Repeated appeals to friendship, compassion and sense of fairness and decency
Perhaps the most important criminal defense for any crime involving an undercover officer or a confidential informant is the Florida criminal defense of entrapment. The entrapment defense may be particularly important in a sell or trafficking drug case.
The defense of entrapment also applies to a wide variety of criminal cases including child pornography cases, online or computer crimes, fraud, white collar crimes and soliciting for prostitution.
Under Florida Law, an individual is not guilty of the offense when:
The individual was encouraged to participate in the crime charged in order for law enforcement to gain evidence that the defendant committed a criminal offense; and
The individual engaged in the criminal act as a direct result of the encouragement; and
And the person or people who encouraged the crime were law enforcement officers or confidential informants acting in cooperation with law enforcement; and
And the person or people who encouraged the crime used methods of persuasion which created a substantial risk that the criminal act would take place by the individual who was not otherwise ready to commit the crime; and
The individual was not a person who was otherwise ready to commit the crime.
Limitiations on the Entrapment Defense under Florida Law
Entrapment does not exist if the individual was ready to commit the crime charged regardless of the encouragement, and had that “predisposition” before any law enforcement officer or confidential informant started the encouragement to commit the crime.
In other words, the entrapment defense does not protect an individual willing or ready to commit the crime charged if the opportunity presented itself.
In order to assert the entrapment defense, the individual must prove to the jury by the greater weight of the evidence that the confidential informant or officer encouraged the crime charged.
Usually this showing is easy to make in any entrapment case in which a confidential information or an undercover officer helped create or set up the crime.
Once that initial showing has been made, the burden of proof shifts to the prosecution who must prove beyond a reasonable doubt that the individual was “predisposed to commit the crime charged.”
The prosecutor must also prove beyond all reasonable doubt that the individual was predisposed prior to commit the crime independent of the encouragement by the confidential informant or officer.
If the jury has a reasonable doubt about whether individual was entrapped, then the jury is instructed that it must return a verdict of “Not Guilty.”
The key to winning a Florida entrapment case is showing everything the confidential informant did to gain the defendant’s trust. Often, the confidential informant performs a series of small acts to induce or encourage the defendant to commit the crime.
The series of small acts are often called “channeling factors” because each step is intended to push the defendant to act in a certain manner. After each failed attempt, the confidential informant may become more aggressive and creates greater incentives to commit the crime. In many of these entrapment cases, the confidential informant will prey on the defendant’s weaknesses.
Source 2: https://www.nolo.com/legal-encyclopedia/entrapment-basics-33987.html
Source 3: https://aizmanlaw.com/investigation-and-defenses/entrapment/
Source 4: https://criminaldefenseattorneytampa.com/legal-defenses/entrapment/