Also known as: entrapments · entrapment defense
Written by attorneys · grounded in primary & secondary sources — see 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.
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Emmett 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.
The 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.
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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.
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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.
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…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…