There are some criminal cases where the more common criminal defenses — mistaken identity, justification, or lack of knowledge or intent — just don’t apply.
Take the case of a defendant who was persuaded by a government informant to buy ten kilograms of cocaine. The informant, who was trying to avoid deportation by turning in drug dealers, met with this man regularly for over a year and a half, trying to persuade him to invest in a drug deal. Ultimately, the man, who had never been involved in any criminal activity, reluctantly agreed. The informant then secretly recorded a couple of meetings with his victim in which the plan to buy the cocaine was discussed. Subsequently, the informant took the man with him to buy the cocaine from an undercover federal agent. Of course, the man was arrested on the spot.
In that case, the informant didn’t uncover a drug conspiracy, he created one.
The evidence against the defendant was overwhelming. The informant testified about his meetings with the defendant, without mentioning the many meetings in which the defendant said he was not interested. The prosecutor played the tapes of the defendant ultimately agreeing to participate in the deal, and the undercover officer testified about meeting with the defendant to sell him the drugs.
Yet the defendant still had a defense: entrapment.
In federal court in New Jersey, a defendant may not be convicted of a crime if he was entrapped by the government to do the acts charged. The government is permitted to use undercover agents, deception and other means of providing opportunities for an unwary criminally minded person to commit a crime, but the law does not permit the government to induce an unwary innocent person into committing a criminal offense.
The defense of entrapment has three basic parts. First, the government, either through an informant or an undercover agent, must have some part in setting up the crime. If a person not associated with the government persuades someone to commit a crime, the defense of entrapment does not apply, although there may be other defenses, such as coercion or duress.
Second, the government must have induced the defendant to commit the offense. Inducement may take many forms: persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward or pleas based on need, sympathy or friendship. It has to be more than simply approaching the person and offering them the opportunity to become involved.
Third, the defendant cannot have been predisposed to commit the offense. That often involves a question of whether he has ever shown any interest in such an offense in the past or whether he has any prior convictions for related or similar offenses.
Obviously, entrapment is a last line of defense. It’s a defense that only comes up when the defendant is forced by the evidence to admit that “yes, I committed the crime, but I was entrapped.”
For the defense to have any chance, the evidence of persuasion must be strong.
Finally, a jury evaluating this defense usually asks itself, “if this informant approached me, would I have become involved?” If the answer is no, the defense fails.
That raises the last element that has to be presented to the jury in order to build a defense of entrapment. The defense needs to show the jury why the defendant decided to become involved, so that they can picture themselves doing the same thing under the same circumstances. If there is evidence that the defendant found himself in a financial crisis, for example, that evidence should be developed and presented to the jury.
Although it is a last line of defense, entrapment is a defense that needs to be considered when the evidence is overwhelming.
