Entrapment as a defense usually arises under circumstances where the defendant is seemingly enticed to pay an undercover officer posing as a prostitute for sex or to purchase drugs. Another scenario involves undercover officers posing as foreign businessmen and offering a bribe to a congressman or other public official.
In each of these cases, the defendant asserts that he would not ordinarily have committed the offense but for the overreaching pressure tactics or threats made by the undercover officer. In other words, the defendant had no preexisting intent or disposition to commit the offense and that the only formed after the threats or harassment.
Entrapment consists of objective and subjective versions.1
Objectively, there must be a showing of:
- Government overstepping the bounds of what is permissible under the law
- Lack of a preexisting criminal intent by the defendant
Exceeding the bounds of what is permissible does not require criminal misconduct on the part of the officer; only that it went so far as to create criminal intent.
Subjectively, there must be a showing that the defendant lacked a disposition to commit the crime. This would necessarily require the defendant to present evidence of his character with the prosecution having the opportunity to tear it down. Your character has to be that of a normal law-abiding citizen. Consequently, you would need to show evidence of strength of character to indicate your lack of a preexisting intent.
Under present California law, the defense focuses on the undercover officer’s conduct2 or the objective version of entrapment. As indicated, there must be evidence of any of the following:
- Undue pressure–offering substantial compensation, appealing to your sense of fairness and compassion, flattering you or asking for sympathy or friendship
- Harassment–repeated solicitations by the officer or agent to commit the offense and threats unless you go forward with commission of the crime
- Fraudulent assurances to you that the conduct is legal
As for your own conduct, how you responded to the threats, harassment or solicitations is considered as to whether a reasonably or normally law abiding person would have acted similarly under these conditions. Your own character is not relevant to this defense unless you testify and have prior felony convictions or you introduce your character as an issue.
Entrapment is also an affirmative defense, meaning that you have to prove the elements of the defense by a preponderance of the evidence rather than producing some evidence that would merely cast doubt on the criminal element of intent to commit the offense. Entrapment is a defense that excuses the defendant’s conduct because the police acted improperly.
If the undercover officer or even a private citizen who is acting as an agent of the police merely gives you the opportunity to commit the offense, then it is not entrapment since it is missing the extreme misconduct of the agent or officer. This might occur if the officer originates the criminal plan such as suggesting that he and/or the defendant go buy some drugs for recreational use.
To show extreme pressure, harassment or repeated solicitations involving flattery or appeals for friendship or assistance, you might introduce phone, email or text messages imploring you to perform an illegal act. If other people are involved, their testimony that you repeatedly refused to engage in the criminal act but inevitably gave in to the pressure would be compelling.
For example, you were once addicted to cocaine but underwent treatment and have remained drug-free. Your girlfriend calls you and says that a friend of hers needs to buy cocaine because her ex-spouse is threatening her over a past debt and providing the drug would satisfy it. You refuse to buy the drugs for her. But over the next two weeks, your girlfriend calls you at work and keeps pressuring you with flattery and then threats to leave you unless you buy the drugs because her friend is also pressuring her. Also, your boss is threatening to terminate you unless the calls stop. Reluctantly, you buy the drugs and bring them to the girls house with your girlfriend. The next day you are arrested for selling a controlled substance.
Under this scenario, your girlfriend was unknowingly acting as the agent for the officer. She can testify that she was under intense pressure from the officer to obtain the drugs or the officer, posing as her friend,3 would undergo a severe beating. You could use the defense in this case even though the officer was not directly involved in the harassment.
Entrapment requires a showing that the defendant was unduly motivated or influenced to commit an illegal act that he would not have engaged in but for the officer’s misconduct. Factors include:
- Assurances that you will not be caught
- Assurances or guarantees that the conduct is legal under the circumstances
- Offer of substantial compensation
- Repeated appeals to friendship, compassion and sense of fairness and decency
Many times, an undercover or sting operation is set up. If you are told that you are not being set up, this “lie” does not amount to misconduct although it seems a minor distinction from being told that you will not be caught. If told that you are not being set up, you will have to introduce additional evidence of harassment, offers of substantial compensation, threats or appeals for friendship.
Question: I work in a massage parlor. A man paid for a massage and then while I was kneading his back, asked me to bring him to orgasm. I refused to do it and told him it was against the law. He kept insisting and said no one would know and then removed all his clothes and said he would give me $300 to do it for him and showed me how ready he was. I reluctantly agreed and was arrested for solicitation and prostitution. Was I entrapped?
Response: You might be able to demonstrate that you were sufficiently pressured to commit the offense coupled with the officer’s conduct that a court could also determine went too far. You would have had to refuse to commit the act several times, which you may have done, but were finally persuaded by an offer of a substantial sum to do a relatively minor sex act. Another factor is that he told you that you would not be caught. It helps if you have no prior convictions for prostitution and had been working there for some time.
Question: What is the difference between entrapment and outrageous conduct?
Response: Entrapment requires a high degree of coercion, persuasion or threats so that you are persuaded to commit a crime you otherwise would not have committed. Outrageous conduct concerns police conduct that is so extreme that it does cause you to commit the crime but also violates your constitutional rights. Beating you until you agree to go forward with the crime is an example.
Question: Will my character be questioned or scrutinized if I assert the entrapment defense:
Response: In some states it would be to see if you had a predisposition toward committing the offense. In California, only the officer’s conduct is scrutinized to see if he or she used threats, harassment, promises of substantial compensation, guarantees that you were not being set up or that the conduct being demanded of you is legal.
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- People v. Barraza (1979) 23 Cal.3d 675 [↩]
- The use of “ruses, stings, and decoys” to expose illicit activity does not constitute entrapment, as long as no pressure or overbearing conduct is employed by the decoy. (Provigo Corp. v. Alcoholic Beverage Control Appeals Board (1994) 7 Cal.4th 561, 568-570 [28 Cal.Rptr.2d 638, 869 P.2d 1163] [↩]
- Bradley v. Duncan (9th Cir. 2002) 315 F.3d 1091, 1096-1098. [↩]