What Does Entrapment Mean in a Legal Case?

You’ve probably heard of the term “entrapment” before, but you may not understand exactly what it means in the legal sense. Though you may presume that entrapment is an illegal act, it’s not a crime at all. That means that those who engage in it are not subject to prosecution or penalties.

Entrapment is an affirmative legal defense. In the most basic sense, it occurs when a government official, such as a police officer, uses threats, fraud, or harassment to induce or coerce someone to commit a crime they wouldn’t ordinarily commit. Defendants who can prove with a preponderance of the evidence that entrapment has occurred will likely be acquitted of the charges for which they are being tried.

Parameters for Entrapment

Entrapment is defined by specific parameters:

• The individual accused of entrapment must be a government agent, such as a law enforcement officer, and not a private citizen;
• Entrapment must involve inducement or coercion to commit a crime, not merely the opportunity to commit a crime;
• The defense must be able to prove by a preponderance of the evidence that the defendant would not have committed the crime were it not for the agent’s inducement or coercion through harassment, fraud, threats, or other illegitimate means.

If these specific parameters are not met, entrapment cannot be used as a valid legal defense.

Elements of Entrapment

To meet the definition of entrapment:

• The individual accused of entrapment must be a public law enforcement official, such as a police officer, or someone who was acting as an agent of a public law enforcement official.
• The accused individual must have induced or made false statements to persuade the defendant to commit a crime.
• The preponderance of the evidence shows that the defendant would not have committed the crime absent the accused individual’s illegitimate acts.

Examples of Entrapment

Entrapment may involve any form of crime, from drug offenses to theft to financial crimes:

• Example 1: A young man is tried on drug charges after being induced to sell cocaine to an undercover narcotics officer who threatens to have the boy “jumped” by his gang if the defendant does not supply the drugs.
• Example 2: An undercover police officer claims that she is on the verge of being evicted with her small children and asks the manager of a large retail store to doctor financial records and provide her with small sums of money for her household. The undercover officer returns every day for two weeks to plead for the money, claiming that her young children will be hungry and homeless without the store manager’s help, while the store owners will never miss the money or be harmed by its loss.
• Example 3: A defendant is charged with criminal trespass after an undercover agent, posing as a heartbroken husband, repeatedly implores the defendant to enter private property and to take photos through the windows to see if his wife is cheating. Without “evidence” of infidelity, the undercover agent claims, he is likely to lose custody of his children in the divorce.

In all of these examples, the parameters for entrapment are met; a government agent is coercing a citizen via threats of violence or consistent harassment to commit a crime they otherwise would not have.

How Does Entrapment Occur?

In a case of entrapment, a crime occurs because of such illegitimate acts as:

• Inducement – Enticing or persuading someone to take a certain course of action by giving or promising them something of value 
• Coercion – Causing a person to believe that failure to perform an act would result in serious harm to them or someone important to them 
• Threats – Expressed or implied statements of an intention to inflict pain, injury, damage, or other hostile action to cause fear of harm
• Harassment – Unwanted, uninvited, and unwelcome words or behavior that causes alarm or substantial emotional distress without any legitimate purpose
• Fraud – Intentional misrepresentation of fact, which the recipient relies upon to act

Burden of Proof

Because entrapment isn’t a crime but an affirmative defense, the burden of proof falls to the defendant making the claim. This means that the defendant must show that entrapment has occurred to claim it as a basis for acquittal.

However, the evidentiary standards for an entrapment claim are lower than those for other claims or charges. Rather than the “beyond a reasonable doubt” standard that generally applies to criminal charges, an entrapment claim must be demonstrated by the preponderance of the evidence. A preponderance of the evidence standard means the defendant must prove that it’s more likely than not that entrapment has occurred. 

What is a Preponderance of Evidence?

Under the preponderance of evidence standard, the burden of proof is met if the evidence indicates that the charge is more likely true than not true. Another measurement is whether a jury believes there is a greater than 50% chance that the claim is true. This is a much lower standard than beyond a reasonable doubt, which is required for a guilty verdict in most criminal cases.

Standards of Judging The Entrapment Defense

A jury may be instructed to use one of two approaches to weighing the evidence:

• An Objective Standard – Requires the jury to determine whether a normally law-abiding citizen would have committed the crime if not for the actions of the government agent.
• A Subjective Standard – Requires the jury to determine whether the defendant was predisposed to commit the crime, thus making them responsible for it regardless of what the government agent did.

A subjective standard is harder for a defendant to overcome, particularly a defendant with a criminal record.

Entrapment vs. Opportunity

To understand what entrapment is in the legal sense, it’s essential to distinguish between entrapment and opportunity. Opportunity means merely having the means and the occasion to commit a crime. Entrapment goes far beyond mere opportunity, as the courts expect a reasonable, law-abiding individual will have the wherewithal to resist the opportunity to commit a crime when it arises.

For example, sometimes officers will leave an unlocked car, key in the ignition, with the engine running in neighborhoods affected by high instances of car-related crimes. Officers will then stake out these “bait cars” to catch criminals in the act. Since standard, law-abiding citizens are expected to deny the opportunity to commit a crime, it doesn’t matter that a law enforcement officer is providing that opportunity. No harassment, fraud, threats, or other illegitimate means are inducing or coercing criminals to act — they are simply “choosing” to steal a car of their own free will. 

Subjective vs. Objective Standards

There are two standards by which an entrapment claim is typically adjudicated: the subjective and the objective.

An objective standard requires jurors to determine whether a normally law-abiding citizen would have committed the crime were it not for the actions of the government agent. For example, the objective standard might require the jury to determine whether a police officer’s conduct rises to the level of threats or harassment and, if so, whether those threats and harassment were sufficient to induce criminal conduct that the defendant would not have otherwise committed.

The subjective standard can be a bit more difficult for defendants to meet. It depends on the jury’s ability to assess the defendant’s criminal predisposition. Specifically, the jury must decide if the defendant is predisposed to commit the crime, thus making them responsible for it regardless of what the police officer or government agent does to induce the time. In such an assessment, the entrapment claim will fail if the jury finds the defendant was inclined to commit the act already and the agent’s actions only served as an added inducement but not as the determining factor.

Common Misconceptions About Entrapment

Common, pervasive misconceptions about entrapment include:

• The belief that entrapment is a crime. It is not a crime, but an affirmative defense.
• The belief that anyone can engage in entrapment. Only police officers and other government agents can commit entrapment.
• The belief that you can be prosecuted and jailed for entrapment. Though a successful claim of entrapment may result in a defendant’s acquittal, the agent who has committed the entrapment is unlikely to face any penalties or punishments and will certainly not face criminal charges or jail time.

Can Private Citizens Entrap Others?

The short answer is no. Only government agents, such as law enforcement, can entrap. However, because these individuals are often undercover agents or confidential informants (CI), it may be difficult to determine exactly who is working for the government. Similarly, it can be challenging to derive evidence from a CI whose identity is protected.

Under New Jersey law, for example, the CI’s identity can only be disclosed in specific circumstances, such as when the CI is a material witness in the case, when they are involved in the crime, or when they have provided false information.