Procedure and Burden of Proof

Section 2.13(1) of the Model Penal Code defines when government conduct amounts to entrapment, and subsection (2) governs what happens once a defendant claims it. The subsection answers three procedural questions. The first is who must prove the defense and to what degree. The second is who decides whether it has been proved. The third is what follows when it has. The Code provides that a person prosecuted for an offense "shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment."¹ The same subsection directs that the court, outside the presence of the jury, tries the issue.² It also opens with a reservation for the violent-offense exception in subsection (3), which removes some prosecutions from the defense entirely and receives its own section later.

The allocation of burden follows from the kind of defense entrapment is. A defendant who raises it does not dispute that the prosecution has proved every element of the offense, mental state included. The claim is that, although the offense is complete, the government's own conduct in producing it entitles the defendant to acquittal. A defense of that shape negates nothing the prosecution must prove, so it operates as an affirmative defense, and the party who asserts an affirmative defense is expected to raise it and support it with evidence. Subsection (2) accordingly places on the defendant the burden of proving the defense, and it sets the standard at a preponderance, meaning that the claim must be more likely true than not.³

That allocation differs from the federal arrangement described in the last section, where a defendant's showing of inducement shifts to the prosecution the burden of proving predisposition beyond a reasonable doubt. The Code has no such shift to make, because predisposition is irrelevant under § 2.13(1)(b), and the defendant therefore carries the whole defense: the agent's methods, the substantial risk they created, and the link between those methods and the conduct charged.⁴ Students lose points when they import the prosecution's burden on predisposition into an answer about the Code, since the Code leaves the prosecution no predisposition question to prove. The next three sections take up the burden of proof, the identity of the decision-maker, and the related federal question whether a defendant who denies committing the crime may still claim entrapment.

Burden of Proof

As the overview just above noted, the defendant must prove entrapment by a preponderance of the evidence, but the allocation has more structure than that sentence shows, because a burden of proof has two parts. The burden of production is the duty to come forward with enough evidence that the issue becomes a live question for the decision-maker. The burden of persuasion is the duty to convince the decision-maker that the claim is more likely true than not. Under the Code the defendant carries both: a person prosecuted is acquitted only on proving that "his conduct occurred in response to an entrapment," so the defendant must supply the evidence and must also win the weighing.⁵ The consequence appears when the evidence is evenly balanced, since a tie is not a preponderance and the defendant loses it. What the defendant must prove is the definition in § 2.13(1) itself: that a public law enforcement official, or someone cooperating with one, induced or encouraged the offense in order to obtain evidence, that the inducement took one of the two forms the definition lists, and that the defendant's conduct was a response to it.⁶

The reason the Code loads the entire burden on the defendant lies in what an entrapment claim contests. Under the objective test the claim leaves untouched everything the prosecution must prove to convict, including the conduct and the mental state, and asserts instead that the government's own methods were improper. Because the claim negates no element of the crime, entrapment is classed as an affirmative defense, meaning a matter offered in avoidance of liability after the prosecution has made its case.⁷ The prosecution carries the burden on the elements because the elements define the offense. A circumstance outside that definition falls to the party who raises it, and the circumstance at issue here is the character of the agent's methods. That explains why the allocation covers production as well as persuasion: if the defendant offers no evidence about what the agent said and did, no question remains for the court to decide.

Jurisdictions that follow the subjective test, the approach of the federal courts and of a majority of state courts, divide the burden differently.⁸ The defendant carries a threshold burden of establishing government inducement, and the size of that burden varies. Some courts require proof of inducement by a preponderance of the evidence, while many require only a burden of production, met by some evidence of government conduct that created a risk of persuading a person not disposed to offend.⁹ Once the defendant clears that threshold, even through evidence the prosecution introduced in its own case, the burden moves to the government, which must negate the defense by proving beyond a reasonable doubt either the defendant's predisposition or the absence of inducement.¹⁰ In the federal courts, the predisposition the government proves must have existed before government agents approached the defendant.¹¹ In Jacobson v. United States that showing failed, because the defendant became predisposed only after two and a half years of repeated mailings from fictitious government entities in a child pornography sting, and the entrapment defense was upheld as a matter of law.¹² The subjective test therefore splits the work between the parties, while the objective test, which has no predisposition question, leaves no part of it with the prosecution.

The objective-test allocation has drawn a practical objection. The government usually controls the evidence about what its agents said and did, and it is in a much better position than the defendant to obtain and preserve that evidence, yet the defendant must prove the improper methods by a preponderance.¹³ The defendant's side of the proof may amount to little more than a personal account of a few conversations, which the court is free to discount. One suggested explanation for placing the burden where the Code places it is that entrapment is a disfavored defense, so that factual doubts are resolved against it.¹⁴ Whichever explanation is preferred, the rule on an exam is the same, because a weak or incomplete showing by the defendant does not oblige the prosecution to fill the gap.

The two defendants could have felt equally pressured. What separates the outcomes is whether the defendant proved the agent's methods with evidence the court could weigh.¹⁵ A defendant who stands on the bare claim gives the court nothing to set against the prosecution's proof of the offense, and the Code does not require the prosecution to answer a claim the defendant has not substantiated.¹⁶

The burden also shapes when the defense is worth raising. Where the defendant carries the burden on an affirmative defense, a prosecutor at a preliminary hearing might argue that no affirmative showing of probable cause against the defense is needed, since at trial a fact-finder could always find the defense witnesses too unconvincing to carry the defendant's burden.¹⁷ Under the majority view that leaves entrapment to the jury, raising it at trial is risky, so defense counsel may choose to present it at the preliminary hearing and to drop it at trial if the magistrate is not persuaded.¹⁸

An answer on this issue should begin by identifying which test the jurisdiction uses, because the allocation follows the test. Students lose points when they treat the Code's allocation as the rule everywhere, since a defendant in a subjective-test jurisdiction carries only the threshold burden and the government must then disprove the defense beyond a reasonable doubt.¹⁹

Judge Decides the Issue

The second sentence of § 2.13(2) allocates the decision: "The issue of entrapment shall be tried by the Court in the absence of the jury."²¹ In practice the judge hears the evidence on the defense, including testimony about what the government agent said and did, resolves any factual disputes, and decides whether the defendant has carried the preponderance burden described in the last section, all while the jurors are excused. If the judge finds that the defendant has proved that the conduct occurred in response to an entrapment, the first sentence of the subsection supplies the result, which is acquittal.²² The jury plays no part in deciding the defense.

This allocation follows from the objective focus of § 2.13(1)(b), which asks whether the agent's methods created a substantial risk that the offense would be committed by persons other than those ready to commit it.²³ Because the defendant's predisposition drops out of that test, the question answered concerns the conduct of public officials and says nothing about whether the defendant is guilty. A court can resolve a question of that kind the way it resolves other questions about the propriety of official conduct. The dissent of Chief Justice Traynor in People v. Moran reasoned along these lines: since the purpose of the defense is to control impermissible police conduct, the court should concern itself with the activity it seeks to control and should not focus on the character and conduct of the accused.²⁴ The same dissent observed that the decisions following the jury-determination rule had offered no explanation for it.²⁵ Excusing the jury also has a practical effect, because evidence about the agent's methods bears on the court's ruling and not on whether the defendant committed the offense, so a hearing outside the jury's presence keeps that material away from the people who must decide only guilt.

Jurisdictions differ on this point, and the difference is a separate choice from the choice between the subjective and objective tests. The majority view treats entrapment as an issue of substantive law for the jury, rather than as an issue of police impropriety for the court.²⁶ Even a jurisdiction that adopts the Code's objective test may keep the jury. In People v. Barraza the California Supreme Court adopted the objective test but held that, in view of the defense's potentially substantial effect on the issue of guilt, entrapment remains a jury question under the new test, although three justices would have left claims of entrapment exclusively to the trial courts, for the reasons Chief Justice Traynor gave in Moran.²⁷ Move the facts of the hypothetical above to California after Barraza, and the same testimony about the informant's methods goes to the jury under an instruction on the objective test. That arrangement is the one the Code's court-decides rule displaces.

Students lose points when they assume that an objective test always means a judge decides. The Code pairs the two, because its test examines police conduct, but a jurisdiction can adopt the objective test and still send the issue to the jury, as California did. An answer should therefore state which allocation the jurisdiction uses, and under the Code it should say that the judge decides outside the jury's presence.²⁸

Inconsistent Defenses

The last two sections assumed a defendant who is actually raising entrapment and asked who carries the burden and who decides. A prior question is whether a defendant who denies committing the crime may raise the defense at all. That question belongs to federal law, since § 2.13 does not address it. It arises because entrapment has the shape of an admission with an excuse attached: the defendant did what the statute forbids, but only because the government induced it. A defendant who tells the jury that the offense never happened and, in the alternative, that any offense was the agent's doing appears to be taking two positions that cannot both be true.

The older rule took that appearance at face value. A defendant who denied participating in the offense was treated as having elected not to pursue entrapment and could not raise it, even when the facts would otherwise have supported it. The modern trend lets a defendant raise entrapment while denying participation, and the Supreme Court adopted that position for federal offenses in Mathews v. United States. The older rule had a surface logic, because a defense that assumes the act was done sits awkwardly beside a denial that it was. Its cost was heavy, though. A defendant with a real dispute over the facts had to choose between holding the prosecution to its proof and claiming entrapment, so anyone who contested the charge gave up the defense.

The facts of Mathews show how the choice arose in practice. An employee of the Small Business Administration was convicted under 18 U.S.C. § 201(g) of accepting a gratuity in exchange for an official act, on allegations that he accepted loans in return for cooperation in SBA matters.³⁰ The district court refused his request for an entrapment instruction because he had not admitted the elements of the offense.³¹ The Supreme Court held that even if a defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment.³² It reversed and remanded, noting that inconsistent defenses are permitted but also directing the lower court to consider whether the evidence was sufficient to support the instruction.³³

The Court's reasons explain the rule's shape. Federal defendants may already rely on inconsistent defenses in other settings, so a special bar for entrapment would have singled out one defense for worse treatment.³⁴ The government argued that allowing inconsistent defenses would encourage perjury, confuse juries, and undermine the search for truth at trial, and the Court found that argument unpersuasive.³⁵ The sufficiency requirement answers much of that worry. The instruction depends on evidence from which a reasonable jury could find entrapment, so a defendant cannot obtain it by announcing the defense, and the rule gets a defendant only to the jury, not to acquittal. In the Abscam prosecution of Senator Harrison Williams for bribery, the defense was framed in the alternative, as no crime committed and entrapment, yet the Second Circuit upheld the jury's finding that he was ready and willing to commit the crimes once the opportunity was presented.³⁶

In several situations there is no real inconsistency to begin with, and the defendant may claim entrapment without admitting the crime even apart from Mathews. Three examples show the pattern:

When the government itself raises entrapment through its own evidence in its case in chief, the defendant is not the one introducing a conflicting theory.³⁷
When the defendant testifies that an agent encouraged a crime the defendant had never contemplated and that the defendant resisted the temptation anyway, the entrapment account and the denial of the crime fit together.³⁸
When the defendant admits the acts but denies the required mental state, the denial attacks an element other than conduct, and the entrapment claim concerns how the conduct came about.³⁹

The two defendants deny the crime in exactly the same way. The difference is the evidence of inducement, which is the fact the Mathews test turns on.⁴⁰ This is a federal comparison point and nothing more here, because the Code's text on entrapment does not take it up. Students lose points when they treat a denial of the offense as a forfeiture of entrapment in federal court, which was the older rule. They lose points in the other direction when they read Mathews as entitling every defendant to the instruction whatever the evidence shows.