Objective Versus Subjective Tests

Objective Versus Subjective Tests

Model Penal Code § 2.13 is one way of deciding when government encouragement becomes a defense, and the federal courts use a different one. The Supreme Court recognized entrapment in federal criminal law in Sorrells v. United States in 1932 and endorsed a subjective test, which looks to the particular defendant's predisposition to commit the crime. Later decisions, including Sherman v. United States and Jacobson v. United States, kept that tradition.¹ Most state courts follow the federal example, while about one third use some version of an objective test that looks to the government's inducement alone. The Code's definition is the standard illustration of that second approach.²

The two tests ask different questions about the same encounter. Under the subjective test the defendant must show government inducement, and the prosecution can then answer with proof that the defendant was already ready to commit the crime, which defeats the defense even when the agent applied heavy pressure.³ Under the objective test the court asks what the government did and what effect those methods would have on normally law-abiding people, and the defendant's own predispositions are irrelevant.⁴ The split follows from two ways of understanding what the defense is for. It can be treated as a denial that the defendant truly chose to commit a crime, or as a rule that regulates how police conduct investigations.⁵ The subjective test follows the first view. Agent pressure matters because it may have produced a crime in someone who was otherwise innocent, so the inquiry turns on the defendant's own disposition. The objective test follows the second view. The concern is the integrity of law enforcement, so a method that would draw in the unready is condemned whatever the character of the person it happened to catch.

Each focus carries a practical consequence. A defendant who raises the subjective defense opens the door to proof of past conduct, which is one reason defense counsel often avoid it, and critics add that it invites police to target people with records.⁶ The objective test shifts the risk the other way, because a defendant with a long record can still prevail against improper methods, and a defendant with a clean record cannot prevail against methods that would attract only the ready.

Neither test is mechanical, because each rests on a judgment about whose protection the defense serves, the otherwise innocent defendant or the integrity of the investigation. On an exam the jurisdiction's test controls. A federal prosecution, or a state that follows the federal approach, calls for inducement and predisposition. A problem that invokes Model Penal Code § 2.13, or that asks about methods creating a substantial risk for persons not ready to offend, calls for the objective analysis. Students lose points when they bring predisposition into a Model Penal Code analysis, since § 2.13 asks only about the government's methods.⁷ The next two sections take the tests in the order they arose, beginning with the subjective test as the original federal approach and then turning to the objective test the Code adopted.

The Subjective Predisposition Test

The federal courts and most state courts decide entrapment by asking what kind of person the defendant was before the government arrived. This approach grows out of a theory about legislative intent. A criminal statute is read to carry an implied exception for people whom officials lure into violating it, because a legislature is presumed not to have meant its enforcement machinery to be used against those who were otherwise innocent.⁹ The Supreme Court first applied that theory in Sorrells v. United States, where a defendant who sold whiskey to a government agent after repeated and persistent solicitation was entitled to the defense. The Court framed the controlling question as whether the defendant was a person otherwise innocent whom the government sought to punish for an offense that was “the product of the creative activity of its own officials.”¹⁰

The theory produces a two-step test, usually called the subjective predisposition test. The first step is inducement: did a government agent, or someone cooperating with one, do more than offer the defendant a chance to commit a crime? The second step is predisposition, which asks whether the defendant was ready and willing to commit this type of crime whenever a favorable opportunity arose.¹¹ Between them the two steps separate cases in which agents “merely afford opportunities” for crime from cases in which the crime is “the product of the creative activity” of the agents themselves.¹² The first step screens out defendants whose plans the government only joined. When an undercover officer agrees to take part in a drugstore robbery that the suspects themselves proposed, the officer has participated heavily, but the officer never suggested the crime, so there was no inducement and the defense ends at the threshold.

Once the defendant has produced enough evidence of inducement, attention shifts to predisposition, and in most jurisdictions that use this test the prosecution must prove it beyond a reasonable doubt.¹³ The procedure section returns to burdens and to the jurisdictions that allocate them differently. The allocation has a logic of its own. Inducement is something the defendant experienced and can describe, while predisposition is the government's answer, an assertion that the defendant would have offended without any help. The party that relies on that assertion to defeat a defense is the one asked to prove it.

Predisposition matters because a defendant who was already ready to offend is not someone whose crime the government manufactured. An agent who catches such a person has caught an unwary criminal, and the defense is reserved for the trap laid for the unwary innocent.¹⁴ Because the question is the defendant's own readiness, the prosecution may answer the defense with proof of earlier similar crimes, which courts usually admit under Federal Rule of Evidence 404(b). A defendant who raises entrapment “cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue.”¹⁵ A burglar with prior burglary convictions who agrees to a staged burglary proposed by an undercover agent posing as a fence will probably lose for this reason, since the record supports an inference that he was ready to commit the offense.

In Sherman v. United States the inducement was plain and the government's proof of predisposition was too thin. The defendant met a government informant while both were being treated for addiction. The informant feigned an addiction of his own and repeatedly pleaded for help getting drugs, and the defendant first refused, then gave in, returning to his own addiction as the two shared the drugs.¹⁶ The government's case on readiness consisted of a nine-year-old sale conviction and a five-year-old possession conviction, with no narcotics in the defendant's apartment and no profit from the sale to the informant.¹⁷ The Court held that the defendant was entrapped as a matter of law. It refused to let the government recast his initial hesitation as the natural wariness of a criminal, because that label could not fill the gap where evidence of readiness should have been.¹⁸ Two facts carried the result: the convictions were old and few, and nothing in the present, such as a stash or a profit, showed a ready seller.

Jacobson v. United States tightened the second step. The defendant had bought a similar publication before any government contact and before the conduct was made illegal. Over the next two and a half years, government agents writing through five fictitious organizations and a bogus pen pal cultivated his interest until he ordered prohibited material through the mail.¹⁹ The Court held that it was not enough that he was ready and willing by the time he was specifically asked. The government had to prove that his predisposition was “independent and not the product of the attention” the government had directed at him over that whole period.²⁰ His earlier purchase did not carry that burden, because most people obey the law even when they disapprove of it, and the Court upheld the defense as a matter of law.²¹ The independence requirement closes a circle that would otherwise swallow the defense. A long campaign of solicitation tends to make its target ready, so if readiness at the moment of the final request were enough, the harder the government worked on a person, the better its proof of predisposition would look.

The Jacobson requirement also fixes when predisposition is measured. The government must show that the defendant was predisposed before being approached by government agents, and it may use two kinds of evidence for that purpose: evidence developed before the first contact, and evidence developed during the investigation but before the offense.²² Both kinds must answer the same question, which is whether the readiness existed before and apart from the government's own attention. The Court also declined to adopt a theory of continuing entrapment, or even a presumption of one, because a person who was first entrapped can later become genuinely predisposed.²³ The jury is therefore not told to assume that an early inducement taints everything that follows.

Students lose this issue when they treat eagerness at the final request as proof of predisposition, because Jacobson asks whether the readiness predates and stands apart from the government's cultivation. The subjective focus also carries a price that critics emphasize. Because the government may prove predisposition with the defendant's history, critics say the test lets police declare “open season” on people with criminal records, and a defendant who raises the defense makes that history fair game before the jury.²⁴ Even when the prosecution fails to prove predisposition, the damaging evidence it introduced may lead a jury to convict on the strength of the defendant's culpable state of mind. Those risks are one reason many defense lawyers disfavor the defense.²⁵ The Model Penal Code removes the second inquiry altogether by making predisposition irrelevant, and the next section takes up that objective test.

The Objective Test of the MPC

The Model Penal Code answers the predisposition problem by writing the defense around what the government actor did. Under § 2.13(1)(b), entrapment is established when the actor induces or encourages the offense by “employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.”²⁸ The approach is called the objective test because it measures the agent's conduct against a hypothetical person who is not inclined to offend, rather than against the state of mind of the particular defendant, and it is also known as the hypothetical-person defense.²⁹ Each part of the standard has its own job. The reference to methods directs the court to what the agent actually said and did. The requirement of a substantial risk asks about likelihood across the people those methods might reach, so the court need not find that the methods in fact overcame this defendant's will. The comparison group, people other than those ready to commit the offense, consists of people who would not have offended without the pressure. Because that group excludes anyone already ready to offend, the defendant's own readiness plays no part, and predisposition is irrelevant under the Code.³⁰

The reason for looking away from the defendant lies in what the defense is meant to accomplish. If its purpose is to control impermissible police conduct, the inquiry should be aimed at the conduct the court wants to regulate, and a court that studies the accused's character has lost sight of that purpose.³¹ That was the reasoning of Chief Justice Traynor's dissenting opinion in People v. Moran, which relied on Justice Frankfurter's concurrence in Sherman v. United States to say that it is “wholly irrelevant to ask if the ‘intention’ to commit the crime originated with the defendant or government officers.”³² The question that statement sets aside, whether the crime was the product of the officers' own creative activity, is the one the subjective test treats as central, so the two tests rest on different views of what the defense protects. Aiming at methods also has two practical consequences. A character-based inquiry lets evidence of past conduct decide the case, and it can leave a defendant with a record unprotected even when the agent's methods would have drawn in anyone. It also gives officers a reason to select targets by their history, since the same methods then fare better against some people than against others. When methods are judged against a hypothetical person, that reason disappears, because the same conduct produces the same answer whoever the target is. The test can therefore be understood as oversight of how the police do their work, serving a purpose much like that of a procedural rule that deters improper investigative practices.³³

That purpose has a built-in limit, because not every police tactic that might tempt a person into crime is condemned. Offenses such as drug trafficking and prostitution rarely produce complaints from their willing participants, so officers can detect them only by acting as seemingly willing participants themselves.³⁴ The line is therefore drawn between methods likely to persuade people who are otherwise unwilling and methods likely to persuade only those who are ready.³⁵ A plain offer to buy narcotics falls on the permitted side: a law-abiding citizen is not ordinarily seduced into drug trafficking by an offer to purchase, although the same offer is quite likely to produce a sale when made to someone prepared to sell.³⁶ When the officer adds methods that create a substantial risk of drawing in a person who is not ready to offend, the defense is established.³⁷ It does not matter that the sale would never have happened without the officer's request, since the argument that every solicited crime is entrapment has not prevailed.³⁸

The pair isolates the variable that matters from the ones that do not. A defendant with a drug record who would lose under the federal approach can prevail under the objective test if the agent's methods were strong enough to draw in a person not ready to offend. In the other direction, a defendant with no record loses when the agent offered only an ordinary opportunity, because an ordinary offer would not tempt anyone who was not already ready.³⁹ Students lose points when they treat a clean record as enough to establish the defense under this test, since the record is irrelevant in both directions and the only question is what the agent did.

Because the standard is phrased in general terms, applying it depends on the circumstances, including the manner in which the particular criminal business is usually carried on.⁴⁰ That context matters because people engaged in crime are generally suspicious of strangers, so agents commonly make several requests or build a personal relationship simply to overcome that suspicion.⁴¹ Persistence alone therefore does not settle the question. Tactics such as frequent entreaties after initial refusals, continuing appeals to sympathy, and promises of excessive profit are the kind that support a claim, because they might induce law-abiding people to offend.⁴² The same tactic can fall on either side of the line, depending on whether it would move only people who were already ready to offend.

The objective approach has a long lineage even though the federal courts did not adopt it. It is sometimes called the Roberts-Frankfurter approach, named for the writers of the concurring opinions in Sorrells and Sherman, and Justice Frankfurter's concurrence in Sherman framed entrapment as police conduct that “falls below standards, to which common feelings respond, for the proper use of governmental power.”⁴⁵ Most academic writers on the subject favor the objective view, and its first authoritative acceptance by judicial decision came in Alaska in 1969, after which several other states adopted it by statute or by decision.⁴⁶ California is among them, having taken the same position as the Code in People v. Barraza.⁴⁷ The California Supreme Court derived the wording of its test from a proposed federal criminal code and from Chief Justice Traynor's Moran dissent, and because the test is designed primarily to deter impermissible police conduct, the court applied it to trials not yet begun when the decision became final, apart from the defendant before it.⁴⁸ The same decision keeps the limit described above: conduct that goes no further than necessary to assure the suspect that the offer is not a “set up” is not entrapment, because a contrary rule would tend to limit convictions in consensual crimes to only the most gullible offenders.⁴⁹

Moving the inquiry from the defendant to the agent does not make it mechanical. Courts that use the objective test have been reluctant to lay down absolutes, so each case turns on its own facts, and deciding whether a method creates a substantial risk for people not ready to offend requires a judgment about how much pressure is proper.⁵⁰ The objective focus therefore leaves as much room for value judgments as the subjective focus on the defendant's state of mind; what changes is whose conduct the judgment evaluates.⁵¹ In practice each side argues from the agent's behavior. The prosecution will say that the agent used no persuasion that would sway a law-abiding person, and the defense will say that the agent planted the idea and did nearly everything needed to bring the crime about.⁵² An exam answer under this test should set out both arguments about the methods and then decide which is stronger, without resting the result on the defendant's history.