Understanding The Defense of Entrapment

Entrapment is a defense to criminal prosecution if a government agent induced a person to commit a crime which the person was otherwise unlikely to commit.

Many crimes are difficult to investigate and prosecute unless law enforcement becomes involved in the crime. Examples are drug sales and possession or prostitution. When prosecution results from law enforcement involvement defendants often claim to have been entrapped; that is, they would not have committed the crime without law enforcement’s participation.

Investigating “Victimless” Crimes

In these types of crimes there are no victims in the classic sense. The drug seller and buyer and the john and the prostitute are willing participants. To police these matters often requires government agents working in an undercover capacity. This tool is used to investigate serious felonies or misdemeanors upsetting the public peace.

Undercover agents or their confidential informants frequently seek out individuals involved in these activities and participate in activities leading up to the criminal conduct. This is often a very effective law enforcement tactic. Problems sometimes arise when individuals who have not been inclined to break the law do so with law enforcement aid or encouragement. This becomes entrapment.

Not a Constitutional Defense

Entrapment is not a constitutional doctrine. It is a criminal law defense to police overreaching, recognized in all states and the federal courts. In general, entrapment occurs when the defendant:

1. was induced to commit the crime by a government agent (typically an undercover police officer); and
2. would not have otherwise committed such crime.

The Colorado Law of Entrapment

In Colorado – Jury’s are instructed on the defense of entrapment as follows:

H:12 Entrapment

It is an affirmative defense to the crime of (insert name of crime) that the defendant engaged in such conduct because he was entrapped.

The defendant was entrapped if:

1. the defendant would not have conceived of or engaged in the offense unless the inducement was offered,
2. the defendant engaged in the offense because he was induced to do so by a law enforcement official or any person acting under their direction, and not as a result of the defendant’s own predisposition,
3. the methods used created a substantial risk that this particular defendant would engage in the offense, and
4. the methods used were more persuasive than merely affording the defendant an opportunity to commit the offense, even if representations or inducements were made to overcome the defendant’s fear of detection.

In addition to proving all of the elements of the crime charged beyond a reasonable doubt, the prosecution also has the burden to disprove the affirmative defense beyond a reasonable doubt.

After considering all the evidence, if you decide the prosecution has failed to disprove beyond a reasonable doubt any one or more elements of the affirmative defense, you must return a verdict of not guilty.

The Authority of this jury instruction is the Colorado Law found at §18-1-709, C.R.S.

Subjective vs Objective Test

Proof of entrapment varies according to whether the jurisdiction in which a case is pending applies the “subjective” test (majority approach) or the “objective” test (minority approach advocated by the Model Penal Code).

The Subjective Test

The subjective test focuses on the defendant’s predisposition, if any, to commit the crime solicited by the government agent. A defendant need not be completely law-abiding in order to assert a defense of entrapment; a history of or predisposition to engage in unlawful activity unrelated to the crime at issue does not preclude the defense.

Entrapment requires more than that the government agent provided an opportunity to the

defendant to commit the crime, and generally involves repeated and persistent solicitation. An example is a case where a defendant who had purchased magazines that contained nude photographs of under-age males not depicting any sexual activity prior to the enactment of a federal law prohibiting the receipt of such materials, and who subsequently succumbed to more than two years of government solicitation to purchase child pornography, was not deemed to be predisposed to commit such crime).

Predisposition may be proved by demonstrating the defendant’s ready complaisance to commit the crime, with evidence of, for example:

• the defendant’s non-hesitancy to commit the crime.
• the defendant’s ready knowledge of how to commit the crime.
• the defendant’s comments prior to the commission of the crime that demonstrate his propensity to commit the crime.

Predisposition may also be proved by reference to the defendant’s character in the community prior to the time the government approached him, e.g., evidence (which is otherwise generally inadmissible) of the defendant’s bad reputation in the community and/or his prior criminal record, including arrests and convictions for related offenses.

In jurisdictions applying the subjective test, the issue of whether the defendant was entrapped is deemed a question of fact and is generally submitted to the jury.

The Objective Test

The objective standard focuses on police conduct rather than the predisposition of the defendant. Under the objective test, the court considers the likely impact of the police

solicitation on a hypothetical innocent person, not the actual defendant. The “hypothetical person” standard may take into account some of the characteristics of the actual defendant.

The Model Penal Code § 2.13(2) provides that the entrapment defense should be submitted to a judge rather than to the jury.

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 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 and 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 must return a verdict of “Not Guilty.”

The key to winning a Colorado 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 serious of small acts are often called “chanelling 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.

Many entrapment cases have hinged on the fact that the confidential informant promised some other benefit for committing the crime, and that additional benefit motivated the defendant to commit a crime he was not otherwise inclined to commit.

Since the defendant’s predisposition becomes an issue in any entrapment case, the prosecutor is given greater latitude to present any evidence that the defendant has committed a similar crime in the past. In those cases in which the Defendant has no criminal record for similar crimes, the prosecution is often much more willing to resolve the case for reduced charges or other considerations when the entrapment defense is aggressively asserted.

Related Entrapment Issues under Colorado Law Entrapment Defense in Computer or Cyber Crimes, On-Line Crimes or Criminal Internet Investigations

Crimes committed by using the internet continues to increase as law enforcement agencies across the State of Colorado are addressing this threat by conducting investigations targeting crime committed on the internet. Internet crimes can include fraud and identity theft. For any on-line sting operation the issues for entrapment would focus on whether the defendant appeared reluctant to commit the crime, the tactics used by the undercover operative in gaining evidence of the crime, the length of time and nature of contact between the undercover agent and the defendant, and the methods used to convince or encourage the criminal act.

Colorado internet / on-line / computer crimes can include the following;

• Internet fraud;
• On-line theft;
• Internet blackmail;
• Forgery using a computer;
• Embezzlement schemes which used computers or computer networks to accomplish criminal activities.

At the Colorado Criminal Defense Law Firm of H. Michael Steinberg, we recognize the importance of asserting the entrapment defense for use at trial or during pre-trial negotiations to gain a more favorable resolution of the case.

Contact our firm to discuss using the entrapment defense.

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