How To Use Entrapment As A Defense To Criminal Charges

Entrapment is a legal defense that excuses the defendant’s conduct because the police acted improperly.

In this guide, I will explain how and when entrapment may be used as a legal defense and when it can not.

Lets get started,

What Is Entrapment?

A person is entrapped if a law enforcement officer engaged in conduct that would cause a normally law abiding person to commit a crime¹.

Police conduct which constitutes entrapment includes:

• Undue Pressure²
• Harassment³.
• Fraudulent assurances

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 Constitutes Harassment By A Police Officer?

Repeated solicitations by the officer or agent to commit the offense and threats unless you go forward with commission of the crime.

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

Is The Conduct of The Defendant Considered By The Trial Of Fact?

How you responded to the threats, harassment or solicitations is considered as to whether a reasonably or normally law abiding person would have acted similarly under these conditions .

Your own character is not relevant to this defense⁴ unless you testify and have prior felony convictions or you introduce your character as an issue.

Is The Burden Of Proof On The Prosecution Or Defendant?

Entrapment is an affirmative defense which means that the burden of proof is on the defendant and he must prove his defense by a standard known as preponderance of the evidence.

What Is Preponderance of Evidence?

It means that it was more likely than not that the defendant was entrapped.

What Types Of Police Behavior Is Not Considered Entrapment?

1. Undercover Operations⁵
2. Decoy Programs
3. Initiating the crime
4. Police officers lying to you about being set up

How Do You Prove Entrapment?

Entrapment requires a showing that the defendant was unduly motivated or influenced to commit an illegal act that he would not have engaged in but for the officer’s misconduct⁶.

Objectively there must be a showing of:

1. Government overstepping the bounds of what is permissible under the law
2. Lack of a preexisting criminal intent by the defendant

Exceeding the bounds of what is permissible does not require criminal misconduct on the part of the officer; only that it went so far as to create criminal intent.

Subjectively there must be a showing thagt the defendant lacked a disposition to commit a crime.

What Evidence Can Be Provided To Show Entrapment?

To show extreme pressure, harassment or repeated solicitations involving flattery or appeals for friendship or assistance, you might introduce phone, email or text messages imploring you to perform an illegal act. 

If other people are involved, their testimony that you repeatedly refused to engage in the criminal act but inevitably gave in to the pressure would be compelling.

Can A Defendant Maintain Innocence And Still Use The Entrapment Defense?

The defendant is not required to admit guilt to assert an entrapment defense⁷.

What Would Be Considered Police Conduct Which Violated Due Process Principles? 

Outrageous conduct concerns police conduct that is so extreme that it does cause you to commit the crime but also violates your constitutional rights⁸. 

Your due process rights may have been violated if:

1. The police manufactured a crime which did not occur
2. Police engaged in criminal or improper conduct repugnant to a sense of justice
3. Persistant sollicitations in the face if unwillingness
4. A desire by police to obtain a conviction with no reading that the police motive is prevent further crime or protect people

Important Information

1. CALCRIM 3408 [↩]
2. People v. West, (1956) 139 Cal.App.2d Supp. 923, 924. [↩]
3. (Same, See People v. West [↩]
4. CALJIC 4.61 — Entrapment-Objective Test-Guidance.  (“Matters such as the character of the defendant, [his] [her] predisposition to commit the crime, and [his] [her] subjective intent are not relevant to the determination of the question of whether entrapment occurred.” [↩]
5. The use of “ruses, stings, and decoys” to expose illicit activity does not constitute entrapment, as long as no pressure or overbearing conduct is employed by the decoy. (Provigo Corp. v. Alcoholic Beverage Control Appeals Board (1994) 7 Cal.4th 561, 568-570 [28 Cal.Rptr.2d 638, 869 P.2d 1163] [↩]
6. People v. Barraza (1979) 23 Cal.3d 675 [↩]
7. People v. Perez (1965) 62Cal.2d 769, 775–776 [44 Cal.Rptr. 326, 401 P.2d 934]. [↩]
8. People v. Peppars, (1983) 140 Cal.App.3d 677, 685. [↩]