Essay on Entrapment

Concept of Entrapment

Entrapment is an affirmative defense that can be raised by the accused who committed the crime solely on the basis of persuasion and instigation from the law enforcement authority.  It is a procedural defense that may exempt the accused from criminal liability.  In determining its existence legal principles such as due process and other constitutional right must at all time be considered.  Due process plays a significant role in the principle of entrapment.  Entrapment itself protects the right of an innocent individual from being convicted of a crime which he committed in the absence of any criminal inclination on his part.  Although the burden of proving entrapment rests upon the defendant, the defense of entrapment was created primarily for the purpose of protecting his right to be heard and to defend himself from the capricious and whimsical prosecution by the government.

Basis of Entrapment

This is based on the principle that the "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" Jacobson v. United States, 503 U.S. 540, (1992).

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Limitations of the Defense of Entrapment

However, the principle of entrapment is not without limitation.  Limitations are set to emphasize the balance between the protection of the constitutional rights of the defendant and the right of the government to resort to various methods of solving the crime.  The conduct of undercover operations are examples of means resorted to by the government to apprehend criminals.  Undercover investigations can be done even in the absence of suspicion on the part of the police officer that a certain person committed, is committing or about to commit a crime. (Johnson, n.d).  His method does not constitute entrapment because in the long line of jurisprudence it was ruled that the right to be free from investigation is not covered by any constitutional right.  However, undercover operations do not preclude entrapment from being used as a defense.  Thus Richard Cleary states that

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. (p.1)

Elements of Entrapment

For the defendant to successfully invoke exemption from liability by virtue of entrapment he must prove two elements: (1) the government’s inducement of the crime, and (2) the defendant's lack of predisposition to engage in the criminal conduct.  Based on the decisions of the Supreme Court in cases involving entrapment, inducement is the most important ingredient.  However, even if inducement has been shown, an accused may still be held liable if the prosecution successfully shows that the accused with or without the inducement is predisposed to committing the crime.  The purpose behind this is that an accused who is predisposed to commit the crime, regardless of the government’s participation should not be relieved of his responsibility (David Beneman, p.9).  Thus, for an accused he must successfully prove that except for the acts of the police officers he would not have committed the criminal act to relieve him from criminal liability on the ground of entrapment. 

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