Entrapment

Entrapment is a defense asserting that the government's conduct, rather than the defendant's criminal disposition, was the true cause of the crime. It recognizes that law enforcement may use undercover operations to detect crime but draws a line at government conduct that creates crime where none would otherwise exist.

Two competing tests for entrapment exist. The subjective test (the majority approach) focuses on the defendant's predisposition. Under this test, entrapment occurs when the government induces the defendant to commit a crime that the defendant was not predisposed to commit. If the defendant was already predisposed to commit the crime — had a pre-existing willingness to engage in the criminal conduct — the defense fails regardless of how aggressive the government's inducement was.

The objective test (the minority/MPC approach) focuses on the government's conduct rather than the defendant's character. Under this test, entrapment occurs when the government's conduct falls below acceptable standards for law enforcement — that is, when the inducement would likely cause a normally law-abiding person to commit the crime. The defendant's predisposition is irrelevant; the question is solely whether the government's behavior was improper.

The practical difference is significant. Under the subjective test, the prosecution can defeat entrapment by introducing evidence of the defendant's prior criminal history, reputation, or willingness to commit similar crimes — essentially putting the defendant's character on trial. Under the objective test, the defendant's past is irrelevant, and the focus remains on whether the government crossed the line.

Entrapment applies only to inducement by government agents (including informants acting under government direction), not private individuals. The defense is unavailable for the most serious crimes in some jurisdictions, and it does not apply when the defendant is already engaged in the criminal activity that the government merely facilitates.

On exams, entrapment appears when law enforcement uses undercover operations. Students should identify which test applies and analyze the evidence of predisposition (subjective) or government overreaching (objective).