Entrapment

Entrapment is a defense that arises when law enforcement officials induce a person to commit a crime that they would not otherwise have committed. The defense recognizes that while the government may use undercover operations and provide opportunities to commit crimes, it may not manufacture crime by implanting criminal intent in an otherwise innocent person. Two distinct tests have developed for evaluating entrapment claims.

The subjective test, used by the majority of jurisdictions and the federal courts, focuses on the defendant's predisposition. Under this test, entrapment is established if the government induced the defendant to commit the crime and the defendant was not predisposed to commit it. If the defendant was already willing and ready to commit the crime, government encouragement does not constitute entrapment. Predisposition is evaluated based on the defendant's character, prior criminal history, response to the inducement, and other evidence of willingness. The subjective test essentially asks whether the criminal design originated with the government or with the defendant.

The objective test, favored by the Model Penal Code and a minority of jurisdictions, focuses on the government's conduct rather than the defendant's character. Under this test, entrapment occurs when the government's conduct would have induced a law-abiding person to commit the crime. The defendant's predisposition is irrelevant. This test aims to deter improper government conduct and avoids the potentially prejudicial inquiry into the defendant's character and prior criminal history. Under either test, merely providing an opportunity to commit a crime does not constitute entrapment; there must be active inducement or persuasion.