Is Entrapment Difficult to Beat?

When the police place the bait and defendants take the cheese, can they get out of the trap?

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The term entrapment is a favorite of the television law shows. It is frequently understood to mean that when a defendant takes the bait dangled by police, the entrapped defendant can count on an acquittal. The scenarios for setting up defendants are known as “stings” and are a common tool of law enforcement in cases ranging from public corruption to drug deals. Thus, the Department of Justice has long recognized that undercover operations have been “especially effective in public corruption investigations.”

In one of the most famous of sting operations, the FBI during the late 1970s provided a fake Arab sheik who approached various members of Congress to lure them into accepting a bribe on videotape. By 1981, the “ABSCAM” investigation had netted convictions of six members of the House of Representatives and one US senator. Unsurprisingly, there was little applause from Congress, which criticized the FBI’s tactics, finding that the “use of undercover techniques creates serious risks to citizens’ property, privacy, and civil liberties.” Responding to such concerns, the attorney general imposed a broad array of preconditions limiting future attempts to use a sting operation to “set up” a public official.

There were, of course, completely fictitious bribery shams, and there was neither a real sheik nor a real transaction to be purchased with bribe money. Even though a sting operation does not present a real-life deal and rests entirely upon a fiction, courts nevertheless hold that the conduct of the defendant is as criminal as if the participants were real.

The cry of entrapment is frequently heard outside the courtroom when defendants are strung. In the actual trial, though, entrapment is a difficult defense to win. As the US Supreme Court explained, rather than the government’s conduct, “the entrapment defense focuses upon the intent or predisposition of the defendant to commit the crime.” The absence of a defendant’s preexisting criminal tendency must be clear. Most basically, a defendant has to show that he was actually turned into a criminal by the enticements of the police. If the defendant was simply repeating an already-existing practice of similar misconduct, he was not entrapped – he was just finally caught.

An entrapment defense is a high-risk strategy

Presenting entrapment requires acknowledging that the defendant perpetrated the acts alleged by the prosecution. Instead of rolling the dice and taking this huge gamble, defendants may prefer to argue that their words and actions had meanings that were innocent rather than criminal. Because sting operations are planned in advanced, they typically have audio and video recordings to capture every memorable moment. After the arrest, the defense listens carefully to such tapes to decide whether to argue that the defendant’s conduct was arguably innocent (deny, deny) or inarguably guilty (set up, conned, and, of course, entrapped).

When the defendant’s own voice includes guilty-sounding words, almost no amount of explanation will suffice. If, on the other hand, the meaning of the defendant’s recorded words is unclear, he or she may choose to profess innocence. (Arguing, for example, that “more pay” on a barely audible tape was really “no way.”) In instances of cryptic or ambiguous statements, or when the tape’s sound quality is poor, some lawyers argue that the defendant was simply playing along rather than engaging in foul play.

On occasion, the entrapment defense will overcome all odds and spring the defendant from the trap. When John DeLorean, the former head of Chrysler Motors, was busted, the tape captured his voice negotiating an illegal narcotics transaction. Remarkably, he was nonetheless acquitted on an entrapment theory: jurors were deeply troubled by the aggressiveness with which the government went after him.

For the most part, though, defendants who set up by sting operations remain stung. The best way to escape the trap is to avoid the bait in the first place.

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