Richard C. Cleary
Undercover operations of law enforcement have become an increasingly popular means of thwarting criminals and criminal organizations in the very early stages of illegal activity. "Stings" provide a person, otherwise innocent to that point, with the opportunity to commit crime. If the law enforcement officers, or their agents, use certain improper tactics, such operations also provide the person with the defense of entrapment.
Because entrapment is a defense, the defendant is required to produce sufficient evidence to raise entrapment at trial. Once he has done so, the State then has the burden of proof beyond a reasonable doubt that the defendant was not entrapped.
Entrapment consists of two elements as follows:
1. State action that induced the defendant to commit the crime; AND
2. A lack of predisposition on the part of the defendant to commit the crime. Each element will be discussed below.
1. State Inducement
In Jacobson v. United States, 503 U.S. 540, 548 (1992) the U.S. Supreme Court stated, "in their zeal to enforce the law...Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the government may prosecute." Inducement by the government can take the form of "persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, pleas based on need, sympathy, or friendship, and any other government conduct which would create the risk of causing an otherwise unpredisposed person to commit the crime charged." United States v. Burkley, 591 F.2d 903 (D.C. Cir. 1978). For example, the Maine Supreme Judicial Court found entrapment where a police officer commanded an intoxicated defendant to move his automobile and then charged the defendant with operating under the influence of alcohol. State v. Bisson, 491 A.2d 544 (Me. 1985). The Court found the officer's command was a form of inducement as he was acting under color of apparent authority. The most common form of inducement is badgering or repeated encouragement by law enforcement of the suspect to violate the law. The actions of informants working for or at the direction of law enforcement are also subject to the entrapment defense. The law enforcement agency cannot circumvent the defense of entrapment by claiming ignorance of the informant's conduct.
2. Defendant Predisposition
In Jacobson v. United States, the United States Supreme Court, Justice White stated, "where the Government has induced an individual to break the law and the defense of entrapment is at issue...the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents."
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