Also known as: entrapments · entrapment defense
Written by attorneys — see sources below.
An affirmative defense to criminal liability available when a public law enforcement official or cooperating person induces or encourages another to commit an offense by making knowingly false representations that the conduct is not prohibited or by employing methods of persuasion that create a substantial risk the offense will be committed by persons not otherwise ready to do so. The defendant must prove the defense by a preponderance of the evidence. The defense is unavailable when the charged offense involves causing or threatening bodily injury to a person other than the entrapper.
Eric Espinoza managed a downtown hotel. An undercover fire marshal posing as a consultant repeatedly visited him over weeks and urged violations of occupancy limits and alarm systems for a cash convention. The marshal falsely assured Eric that temporary waivers existed and city officials secretly approved the plan. Eric initially refused on safety grounds but eventually directed staff to block exits after the continued pressure and assurances.
Eva Espinosa was charged with bribery after accepting cash from an undercover agent who posed as a contractor. At trial she raised entrapment and testified about her clean record. The prosecution introduced prior similar acts to show she was already willing to accept improper payments before the agent's contact.
In 1947 Solomon Michelson stood trial in federal court on a charge of bribing a revenue agent. The government introduced evidence that Michelson had made a substantial cash payment to the agent. Michelson testified in his own defense, admitting the payment but claiming the agent had demanded, threatened, and induced it. On direct examination Michelson's counsel brought out that he had been convicted in 1927 of a misdemeanor involving counterfeit watch dials. Cross-examination further showed that in 1930, when applying for a license to deal in second-hand jewelry, Michelson had answered "No" to a question asking whether he had ever been arrested or summoned for any offense. Michelson called five character witnesses who had known him for fifteen to thirty years. Each witness testified on direct examination that Michelson's reputation for honesty, truthfulness, and being a law-abiding citizen was very good, based on conversations with others in the community. On cross-examination the prosecutor asked four of the witnesses whether they had ever heard that Michelson had been arrested on October 11, 1920, for receiving stolen goods. None of the witnesses had heard of the incident. Outside the presence of the jury the prosecutor assured the trial judge that the arrest had occurred and produced a supporting record that defense counsel did not challenge. The trial judge gave the jury limiting instructions on three separate occasions concerning the purpose of the questions. Michelson was convicted on the bribery count. The Court of Appeals affirmed the judgment.
View caseEmmett Egan stood on a street corner when an officer approached and asked whether he had drugs for sale. Emmett had no prior record and initially declined. After the officer persisted with offers of easy money, Emmett agreed to a small transaction and was arrested.
Evelyn Ellison served as a city procurement officer with no history of corruption. A federal agent posing as a vendor repeatedly urged her to steer contracts in exchange for cash and falsely stated that such arrangements were routine and legal. Evelyn initially refused but eventually accepted after weeks of pressure.
Ella Emerson was approached by an undercover agent who offered to supply ingredients for an illegal substance. Ella had never manufactured the substance before the contact. After extended persuasion she agreed to participate and was later charged.
Erika Echevarria operated a small store. A federal agent posing as a customer repeatedly asked her to sell untaxed liquor and assured her the transaction would go undetected. Erika had never sold untaxed liquor before the agent's visits and only agreed after persistent requests.
Defendant Sorrells was indicted on two counts for possessing and selling one-half gallon of whiskey on July 13, 1930, in violation of the National Prohibition Act. He pleaded not guilty and at trial relied on the defense of entrapment. Prohibition agent Martin visited Sorrells' home near Canton, North Carolina, on Sunday, July 13, 1930, accompanied by three local residents who knew Sorrells. Posing as an ex-service man and furniture dealer from Charlotte, Martin asked Sorrells multiple times to obtain liquor, eventually succeeding after invoking their shared World War experiences in the 30th Division; Sorrells returned with a half gallon for which Martin paid five dollars. Sorrells presented testimony from the three companions corroborating the repeated requests and his initial refusals, along with evidence of his steady employment since March 1924 and good character from multiple neighbors. The government offered rebuttal testimony that Sorrells had a reputation as a rum-runner, but introduced no evidence of any prior liquor transactions by him. The trial court denied a motion for directed verdict, refused to submit the entrapment issue to the jury, and ruled as a matter of law that there was no entrapment. Following a guilty verdict, the court sentenced Sorrells to eighteen months' imprisonment, and the Circuit Court of Appeals affirmed. The Supreme Court granted certiorari limited to the question whether the evidence was sufficient to go to the jury upon the issue of entrapment.
View caseThe defendant must show by a preponderance of the evidence that a law enforcement official or cooperating person induced the offense through knowingly false representations that the conduct was lawful or through methods creating a substantial risk that persons not ready to offend would commit the crime. The defense is tried to the court without a jury.
Supporting sources
No. The mere provision of essential materials or contraband by a government agent does not by itself constitute entrapment. The key inquiry remains whether the defendant was predisposed to commit the offense before the government's initial contact.
Supporting sources
The defense is unavailable when the charged offense includes causing or threatening bodily injury to someone other than the person who perpetrated the entrapment.
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The objective approach focuses solely on whether the government's methods would likely induce a person not already ready to offend to commit the crime. The subjective approach additionally examines the defendant's predisposition before government contact.
Supporting sources
…See L. Tiffany, D. McIntyre & D. Rotenberg, Detection of Crime: Stopping and Questioning, Search and Seizure, Encouragement and Entrapment 18-56 (1967). This sort of police conduct may, for example, be designed simply to help an intoxicated person find his way home, with no intention of arresting him unless he becomes…