Written by attorney Joseph Potashnik

How Does Entrapment Defense Work

We have all heard about entrapment – when an undercover agent persuades a person to commit a crime which the person would otherwise not commit. In federal criminal law entrapment is a complete defense. According to the Supreme Court decision in Jacobson v. United States, 503 U.S. 540, 548 (1992), “Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute."

In New York, in order to have a good entrapment defense, the defendant must show that government did induce the crime, and more importantly, that the defendant lacked predisposition to engage in the criminal conduct.

To demonstrate that government agents induced the defendant to commit a crime is no easy task for defense lawyers. Simple solicitation by an officer to commit a crime is not enough. Numerous Supreme Court decision hold that the element of inducement requires at least persuasion or mild coercion, pleas based on need, sympathy, or friendship, or extraordinary promises of the sort “that would blind the ordinary person to his legal duties".

Even if inducement has been established, if the defendant is shown to have been predisposed to commit the crime, there is no entrapment defense. To determine predisposition, courts will look at whether the defendant was an unsuspecting and totally innocent or, instead, an unsuspecting criminal who readily accepted the agent’s offer to commit the crime.

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