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.
The Elements of Entrapment
Because entrapment is a defense, the defendant is required to produce sufficient evidence to argue 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:
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.
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.
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."
The Defendant, Jacobson, had ordered and received from a bookstore two Bare Boys magazines containing photographs of nude preteen and teenage boys. Subsequently, the Child Protection Act of 1984 made illegal the receipt through the mails of sexually explicit depiction of children. After finding Jacobson's name on the bookstore mailing list, the Government sent mail to him to explore his willingness to break the law. Some mailings claimed a desire to promote sexual freedom through lobbying efforts. Some mailings discussed concerns regarding censorship.
After 26 months of Government mailings it finally solicited Jacobson to order child pornography. He was arrested after a controlled delivery of the magazine ordered, but a search of his house revealed no materials other than those sent by the Government.
The Court, in agreeing with Jacobson that he had been entrapped, stated that the Government failed, as a matter of law, to show any predisposition on the part of Jacobson to commit the crime charged. The fact that no material other than that mailed by the Government, and the two Bare Boys magazines purchased when it was not illegal to do so, was found in Jacobson's home was significant.
The Court concluded, "when the Government's quest for conviction leads to the apprehension of an otherwise law abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should intervene."
Conclusion
Undercover operations should not be designed or implemented to induce innocent citizens to commit crimes. Entrapment occurs when the operation traps the "unwary innocent" as opposed to the "unwary criminal." Courts have the unenviable task of determining, after the fact, whether or not a person had a criminal predisposition before committing the crime. Law enforcement officers must avoid any form of inducement or they will be subject to the sting of entrapment.
Richard Cleary - I am an attorney practicing law in Houlton, Maine. The majority of my cases are in the corporate, civil, real estate and family law ...
