If you're ready to mount an entrapment defense, this means that you're admitting guilt. Basically, you're guilty of the crime, but the police made you do it. This happens more often than you think, and it is especially common in drug trafficking cases where the police can manipulate a drug addicted defendant into doing just about anything to support their addiction. As you'll see below, this isn't really crime detection, its crime creation. And the closer we get to inventing a crime, the closer we get to an entrapment defense.
Entrapment explores that fine line between police conduct that detects crime, and police conduct that creates a crime.
When the police decide to abandon crime detection and enter crime creation, they may be crossing the line into entrapment territory. The question becomes, how far can the police go in order to promote criminal conduct? When law enforcement's level of inducement is so high that it causes a citizen to commit a crime they were not otherwise willing to commit, we officially have an entrapment issue. (for more details on the issue of inducement, click on my article "Money for Nothing and Your Chicks for Free")
Under Florida law, two distinct entrapment defenses exist: subjective entrapment and objective entrapment.
Objective entrapment occurs “in the presence of egregious law enforcement conduct” and “is to be evaluated under the due process provision of Article I, section 9, of the Florida Constitution.” Munoz v. State, 629 So.2d 90, 99 (Fla.1993). Basically, we're focusing on the conduct of the police. Was it outrageous? I hate to say it, but many judges have a hard time finding anything done in the name of crime fighting to be "egregious" or "outrageous". That's why we typically focus on subjective entrapment, as the hurdle on objective entrapment can be too high.
Subjective entrapment requires a showing by the Defendant that he was not predisposed to commit the alleged offense. Id. The elements of the subjective entrapment defense have been codified in section 777.201(1), Florida Statutes (2001), listed below:
Entrapment, Section 777.201(1) of the Florida Statutes, holds that the police commit entrapment when they cause or induce someone to commit a crime that they would not otherwise commit. Simple concept, right? Well, not so fast.
Our Florida Supreme Court uses a three-part test to determine if subjective entrapment under section 777.201(1) has occurred. Beattie v. State, 636 So.2d 744, 746 (Fla. 2d DCA 1993) (citing Munoz ).
- Whether an agent of the government induced the accused to commit the offense charged. On this issue, the accused has the burden of proof. Not to get too philosophical here, but what is "inducement?" Inducement includes persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas of an officer or confidential informant to the accused based on need, sympathy, or friendship.
- Whether the accused was willing to commit the crime without being convinced to do so. If no persuasion is required, we may not have much of an entrapment defense. How eager was the defendant to commit a crime? On this question, the accused initially has the burden to establish lack of predisposition. As soon as the defendant produces evidence of no predisposition, the burden shifts to the prosecution to rebut this evidence beyond a reasonable doubt. In rebutting this evidence of lack of predisposition, the prosecutor may make “an appropriate and searching inquiry” into the defendant's criminal history (arrests, convictions, everything). This sort of inquiry is normally inadmissible, but its fair game once a defendant claims entrapment. Proving that you have "no predisposition" can be tricky, but we can get halfway there if the defendant has no prior criminal history and no history whatsoever of engaging in drug distribution.
- Whether the entrapment evaluation should be submitted to a jury. Id.
The beauty of an entrapment defense is that if the State cannot produce evidence beyond a reasonable doubt that the defendant possessed a predisposition to commit the offense, a defendant is entitled to a dismissal of the charge. Id. Just how far can the government go before crossing the line? For more details on classic entrapment situations, read my article entitled "Can the Government Really Set People Up Like That?"
Entrapment is a complex, but interesting, issue. Our brief analysis above is only the tip of the iceberg, so please give me a call, and we'll discuss your situation for free. What do you have to lose? Nothing. Just knowledge to gain, and that's always a good thing.