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One of the most misunderstood criminal law concepts, demystified.

Law enforcement is meant to fight crime, not create it. When the government induces intent to commit a crime, they are making criminals out of law-abiding people. Entrapment is an illegal technique used by law enforcement to coerce, entice, lure, or otherwise unduly pressure a person into breaking the law. The government may use threats, fraud, harassment, or other tactics to induce crime in individuals who are not otherwise disposed to commit crime, but entrapment can exist without threats and other duress. The entrapment defense is codified by Texas Penal Code §8.06.

Contrary to popular belief, law enforcement simply providing a person the opportunity to commit a crime is NOT entrapment. Examples of law enforcement involvement that typically do NOT rise to the level of “entrapment” include:

  • An (undercover) officer poses as a potential drug buyer, approaches an alleged drug dealer, and offers $150 in exchange for a gram of cocaine. When the alleged drug dealer accepts the officer’s offer and agrees to exchange cocaine for money, he has committed a crime. The mere fact that an undercover police officer was the potential buyer of the cocaine doesn’t mean that the alleged drug dealer was entrapped. In this simple scenario, the officer provided the opportunity for the alleged dealer to commit the crime, but did not coerce, entice, or unduly pressure the dealer.

  • An officer sets up a “speed trap” and waits at an area where the speed limit dramatically changes. An unsuspecting vehicle is traveling at 65 MPH and is unable to reduce their rate of speed before the speed limit changes to 40 MPH. The officer immediately pulls the vehicle over. The officer was poised in anticipation of the driver’s failure to conform to the posted speed limit, but they did nothing to induce driver to speed. Thus, the officer did not “entrap” the speeding driver.

  • An (undercover) officer poses as a customer at a strip club, approaches a dancer at the club, and offers $200 in exchange for oral sex. If the dancer agrees to the illegal exchange of sexual services for money, she has committed a crime. Again, the undercover officer simply providing the opportunity for the dancer to agree to sell sexual services does not, in this scenario, constitute entrapment.

Entrapment is a defense to criminal charges, and it has several elements that must be proven:

  • The accused committed a crime;

  • The accused was induced by law enforcement to commit the crime;

  • Law enforcement used coercion, enticement, or other undue pressure to induce the accused to commit the crime;

  • Reasonable, law-abiding citizens would have committed the crime under the circumstances faced by the accused; and

  • The accused was not predisposed to committing the crime.

Private parties cannot entrap a person. By its nature, entrapment applies only to conduct by the government/law enforcement officials. The defense of entrapment was created to curb improper tactics used by law enforcement and keep them in check, offering a measure of social protection.

An entrapment defense is most viable when the accused has not been convicted of this particular (or a similar) crime in the past. When an accused individual has been convicted of drug distribution in the past, for instance, the accused’s intent and predisposition to commit similar crimes again tends to make the entrapment defense weaker. Once entrapment is argued, there’s no room to dispute whether the accused actually committed the crime in question– the defense itself admits that the accused did what they’ve been accused of doing.

The lynchpin of entrapment is that the government implanted in the accused the will and disposition to commit the crime. Therefore, entrapment largely rests on proving that the accused did not have the predisposition to commit the crime and were it not for the government’s particular inducement, the accused wouldn’t have committed the crime. This is a subjective analysis of the accused’s criminal disposition, discussed more below. Again, the government offering an opportunity to commit crime does not, in itself, constitute entrapment.

Texas principally uses an objective test for determining whether government conduct rises to the level of entrapment. This test asks whether a reasonable, otherwise law-abiding person would be compelled to commit the same crime if they were in the shoes of the accused. Texas also considers elements of the subjective test for entrapment. The subjective test asks whether the accused in particular was actually induced to commit the crime by the government or whether they were already disposed to commit the crime for which they were charged. Essentially, “did the police really get you to do it, or would you have done it anyway?” Was the accused otherwise unwilling to commit the crime or were they ready, willing, and able to commit the crime whenever the opportunity presented itself?

Non-attorneys often see entrapment lurking behind every case involving undercover law enforcement or other cases of questionable origin. Successful entrapment defenses are rare, but an experienced and creative criminal defense attorney may consider it a viable defense in your case.

Whatever the criminal charge you’re facing, Diablita Criminal Defense can craft your strongest defense. Don’t wait– speak with the Devil.

Call (512) 838-3442 for a FREE initial consultation.

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