What is entrapment?

Why the defense exists

Police are allowed to catch people who are already inclined to commit crimes. They are not allowed to manufacture criminals out of law-abiding citizens. Entrapment draws the line between those two things. It is a defense only against the government and its agents — including paid informants — not against private individuals who talk someone into a crime.

The two tests

• Subjective test — used in federal court and most states. The focus is the defendant's predisposition. If the jury finds the person was ready and willing before the government showed up, the defense fails, even if the pressure was heavy.
• Objective test — used in a minority of states, including California. The focus is police conduct: would the inducement have led a normally law-abiding person to commit the offense? The defendant's own character is largely irrelevant.

What counts as inducement

Persistent solicitation after repeated refusals, appeals to sympathy or friendship (“I'm sick and need the drugs to get through the day”), threats, or offers so extravagant that they would overcome ordinary resistance. A single offer to buy drugs, a decoy car left unlocked, or an undercover officer agreeing to a deal the defendant proposed is not inducement — it is only an opportunity.

How predisposition is proven

Prosecutors point to the defendant's eagerness, familiarity with the criminal activity (knowing prices and slang, for example), prior similar conduct, and how quickly they agreed. The leading federal case, Jacobson v. United States (1992), overturned a conviction because the government spent more than two years sending mailings to a man before he ordered illegal material — the Court held that the predisposition had to exist before the government's efforts began.

Watch

How it is raised

Entrapment is an affirmative defense. The defendant normally carries the initial burden of producing some evidence of inducement; in federal court the prosecution must then prove predisposition beyond a reasonable doubt. Raising it usually concedes that the act happened, which is why it is rarely combined with a claim that the defendant did nothing at all. In most jurisdictions it is decided by the jury; under the objective test it is often decided by the judge.

Common situations

• Drug stings, where informants working off their own charges push friends to sell.
• Online sting operations involving officers posing as minors — entrapment is frequently raised and rarely succeeds unless the officer was the one who repeatedly steered the conversation toward sex.
• Prostitution and solicitation stings.
• Terrorism and weapons cases built by informants over months.

What entrapment is not

It is not entrapment for an undercover officer to lie about being a police officer, to fail to read Miranda warnings before an arrest in a sting, or to provide something the defendant could easily have obtained elsewhere. Police are also not required to have suspicion before offering an opportunity, though some courts view a random, aggressive approach as evidence of inducement.

The related doctrine

Outrageous government conduct is a separate due-process argument: conduct so shocking that prosecution offends fundamental fairness, regardless of predisposition. Courts accept it very rarely, but it survives as a distinct argument where police effectively created the entire offense, supplied everything needed and recruited the defendant to carry it out.

Practical note

Entrapment cases turn on recordings, text messages and informant histories. Preserve every message with the person who approached you, and let a criminal defense lawyer decide whether the defense fits before you discuss the case with anyone.

Where the defense works best

Entrapment succeeds most often when four facts appear together: the government made the first approach, the defendant refused or hesitated more than once, the government kept up the pressure over weeks or months, and the defendant had no record or history of similar conduct. When any of these facts is missing, defense lawyers usually rely on other arguments — lack of intent, insufficient evidence, or problems with how the informant was used and paid — and keep entrapment as a secondary theory or drop it entirely.