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Entrapment Defense

To entrap a person means that law enforcement induces, promotes, plans, or encourages another person to commit a crime that a normally law-abiding citizen would not otherwise commit. When law enforcement entraps a person into committing a crime that person may be freed from any criminal liability that results from that crime (CalCrim No. 3408)

As stated, entrapment occurs when law enforcement overreaches in their efforts to catch criminals by instigating, promoting, encouraging, creating, or planning a crime for the defendant to commit. For example, entrapment might occur when law enforcement use scantily clad undercover officers who pose as street prostitutes who aggressively flag down unsuspecting drivers and pressure those drivers to engage in sexual conduct for the purpose of catching defendants who are otherwise not looking for prostitutes.

Note: The defense of entrapment is designed to stop law enforcement from setting up criminal conduct. Therefore, entrapment is a defense 'not because the defendant is innocent, but rather, because it is less evil that some defendants escape prosecution than the Government play an ignoble part of the crime' (People v. Benford (1959)) [Paraphrased].

Affirmative Defense: Entrapment is an affirmative defense which means that the defendant can be in fact guilty of the alleged crime (affirmed), but is nevertheless entitled to a not guilty verdict because of law enforcement's promotion of the crime.

Objective Test: Whether or not the police instigated, encouraged, promoted, created, or otherwise promoted a crime, is viewed in the absence of the defendant’s predisposition to commit the crime. This means that even if the defendant was likely to commit a crime, with little or no encouragement from law enforcement, it is not relevant on the issue of whether or not the defendant was entrapped.

For example, if the police repeatedly encourage defendant to steal a purse, knowing that the defendant has stolen many purses, the defendant may use the defense of entrapment. This is because it is not the defendant’s proclivity to steal purses that is relevant, but rather, law enforcement’s involvement in instigating the crime of purse stealing.


Note: In determining whether the police instigated a crime, the court will look to any appeal to sympathy or friendship by police to the point that a normally law-abiding person would likely commit the crime (among other factors).

Burden of Proof: The defendant has the burden of proving entrapment by a preponderance of the evidence. This means that the defendant must show more likely than not that he or she was entrapped after the prosecutor has proved the defendant is guilty of the crime beyond a reasonable doubt.


Note: Ordinarily, the defendant has the right to remain silent through every stage of a criminal case, including trial; but, if the defendant claims that he or she is entrapped he or she must show at least some evidence of the facts that lead to his or her entrapment. This means that the burden is on the defendant to prove entrapment by showing that she was induced, encouraged, etc., to commit the crime. This does not mean that the defendant must plead guilty to the crime before introducing evidence of entrapment. It also does not mean that the prosecutor is relieved of his duty to prove the crime beyond a reasonable doubt. The court has determined that a plea of not guilty and a claim or entrapment are not inconsistent defenses. For practical reasons, most criminal defense attorneys do not argue alternative defenses, but if the defense of entrapment presents itself in the course of a trial the defendant is entitled to a jury instruction that directs the jury to consider the issue.

Note: The defense of entrapment must be found unanimously by a jury in order for the defense to apply.

The most common crimes where the defense of entrapment is used include drug crimes, prostitution, conspiracy crimes, traffic offenses, sending harmful matter to an underage person, and illegal gaming and gambling. The defense of entrapment may apply to infractions, misdemeanors, and felonies in California.

Agents Included: Entrapment law applies to law enforcement, prosecutors, and agents of law enforcement. For example, if an informant consistently pressures a known drug dealer to sell drugs to the informant so that the police may then charge the defendant with the crime of selling drugs, the informant is the agent of law enforcement and the defendant may use an entrapment defense.

Vicarious Defense: Entrapment is may not be claimed vicarious through another defendant. This means that if one defendant is entrapped to commit a crime as part of a criminal enterprise, other related defendants may not lean on the entrapped defendant’s defense to absolve their criminal liability.

For example, if defendant A is induced to commit a crime he thereafter conspires with defendant B to commit that crime, then the fact that an entrapment defense might apply to defendant A does not necessarily mean that it applies to defendant B. This is true unless defendant B was directed by law enforcement through defendant A. For example, if law enforcement induces defendant A to conspire to commit a crime with defendant B, then an entrapment defense might apply to defendant B.

Decoys Allowed: If the police merely give an opportunity for a defendant to commit a crime, then there is no entrapment. In other words, if the intent to commit a crime does not originate with law enforcement, but rather, with the defendant, then there is no entrapment.

For example, if police merely set up a sting operation to catch illegal drug sellers by using an undercover officer to loiter around an area frequented by drug sellers, then no entrapment occurs when the undercover agent is solicited by a drug dealer to buy drugs. This is common in sting operations for drug sales, prostitution, buying stolen property, online predators, use of “bait cars” to catch auto thieves, and more.

If you have been charged with any traffic infraction, misdemeanor, or felony in California, and you believe that you may have been entrapped by law enforcement into committing that criminal conduct, contact our criminal defense lawyers today for a free consultation. Our lawyers are available every day of the week to answer your questions and review your rights and defense options. Call today!


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