Scott M. Kuboff, Esq.
Northeast Ohio Trial Attorney

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UYR: Defense of Entrapment

          Raise your hand if you ever believed (or still do) that an undercover law enforcement officer must disclose his/her identity as such if asked, otherwise it’s entrapment? I certainly believed this bit of “wisdom” for quite some time; at least until I went to law school and actually learned otherwise. So to dispel the common misconception, it is not entrapment if you ask a supposed officer, are told no, proceed to do whatever it is you were interested in doing, and then are arrested anyways. Many people at college tailgate parties or in internet chat-rooms already know this is true. 

          So what is entrapment? It is an affirmative defense that, if established, entitles an accused to an acquittal. As an affirmative defense, the accused carries the burden to prove the defense by a preponderance of the evidence, or greater weight of the evidence (ie. 50.1%). Legally, entrapment is defined “where the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order to prosecute.” In other words, the accused had no predisposition to commit any offense and, but for the government’s inducement, would not have committed any offense. When raised, the accused necessarily admits the commission of the offense but then seeks to avoid criminal liability by maintaining that the government induced him to commit an offense that he was not predisposed to commit. This typically requires him to take the stand and provide testimonial evidence concerning the circumstances and his non-predisposition. In evaluating this defense, courts will consider: (1) the accused's previous involvement in criminal activity of the nature charged, (2) the accused's ready acquiescence to the inducements offered by the police, (3) the accused's expert knowledge in the area of the criminal activity charged, (4) the accused's ready access to contraband, and (5) the accused's willingness to involve himself in criminal activity. 

        However, entrapment is not established when government officials "merely afford opportunities or facilities for the commission of the offense" and it is shown that the accused was predisposed to commit the offense. For example, someone is seeking out a prostitute and goes to Craigslist or Backpage to find one. Unfortunately for him (or her), the online posting is from an undercover agent from the sheriff’s department. This is not entrapment because the government only afforded an opportunity for an individual who was predisposed to commit a crime. That is a straightforward example, however, lines become increasingly blurry in cases like the Route 82 bridge bombing or in AFT drug-house stings, where individuals are predisposed to commit some crime but it then escalates through law enforcement involvement. Obviously, the question of entrapment is evaluated on a case-by-case basis. If you have further questions on this topic, please feel free to contact me.

scott kuboffCriminal, Entrapment