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The Law Offices of Robert E. Brown, P.C.

Your Best Defense for a Police Entrapment Case Is …

An undercover law enforcement official has coerced you to commit a crime. You have, however, heard about Police Entrapment as a possible criminal defense. But you don’t know anything else about it.

First, it’s important to know what exactly police entrapment is. Police Entrapment is when a police officer is held responsible for your commission of a crime. An example of this would be an undercover officer influencing you in some way to commit a crime, then arresting you for committing that crime.

The entrapment defense will not always work, even in a situation that seems like entrapment. This is because of something called Opportunity. Opportunity is the more ordinary version of entrapment, where a government official will offer a person the opportunity to commit a crime. The difference; Opportunity has no elements of coercion or trickery. When threats or fraud become involved, Opportunity becomes Entrapment.

To see the difference, let’s say that Bob is involved in a drug deal with an undercover cop. The cop assures Bob that the deal is legitimate, that he is not a police officer, and that this is not a set-up. Bob sells the officer the drugs and is arrested. This is an example of Opportunity, not entrapment. Despite the officer’s fabricated story, he merely offered an opportunity to break the law. Bob was never forced into it.

Now, let’s say a cop, under the guise of being a criminal, met up with Bob and threatened to shoot him if he did not acquire drugs to sell to the officer. Bob does so, under threat of his life, and gets immediately arrested. This is entrapment, as Bob is threatened and harassed to commit a crime he would otherwise not have committed.

When an entrapment case is brought before a jury, there are two standards a jury will use when examining the facts of the case; objective and subjective. When using an objective standard, the jury simply looks for the core points of entrapment. But when using a subjective standard, the jury looks into the convicted individual and determines if he/she has a predisposition to commit the crime. If so, the defense will likely fail. Subjectively, entrapment rarely works. Each state uses a different standard. For example, California is an objective state, while Florida is a subjective state.

It is also important to note that entrapment will only be legally recognized if those involved are government agents, i.e. FBI, CIA, Police Officers. An ordinary citizen can potentially entrap you, but despite being trapped, it cannot be used as a legitimate defense.

If you believe law enforcement officials overstepped their bounds in persuading you to commit a crime, and you have worked with your attorney to establish that what occurred was entrapment, not Opportunity, you must be able to prove several things, with a preponderance of the evidence, to the jury.

The best thing you can prove is that you lacked criminal intent, and/or that you are not predisposed to criminal activity. The best instances in which this would work are sex or drug-related offenses, where an officer would pose as a prostitute or a drug dealer, and manipulate you into purchasing either contraband drugs or illegal sexual services. Here, having a clean record beforehand will immensely improve your chances of your case having a positive outcome, as you have no history of criminal activity, and so, cannot be predisposed to it.

Beyond this, you must prove a lack of criminal intent before having committed the crime. You can have a sparklingly clean record, but if they can prove criminal intent before being presented the opportunity by the undercover officer, you will lose the case.

The most popular and fool-proof way for a jury or prosecution to prove criminal intent is via a confession, something which the lawyers at the law firm of Gruszeczki & Smith Law, LLP will implore you not to do, whether it be written or verbal until you have spoken to an attorney. This is important to note and must be adhered to, despite any tactics an officer might employ to force a confession, including neglecting to read your Miranda warning, telling you to admit to your crime in a way that suggests you have no choice or threatening you with the intent of forcing a confession. Any of these can be used by a skilled attorney to help prove entrapment and get your case dropped.

So, what is your best defense in a police entrapment case? A good attorney. Whether or not the state you are convicted in has objective or subjective standards is out of your control, whether or not a law enforcement official manipulated, threatened, or in any way forced you to commit a crime is likewise, out of your control. The only thing you can control in this scenario is your demeanor and your defense. With the proper defense, entrapment can be applied; your charges will be dropped and your record will remain clean.

Robert Brown

About the Author Robert E. Brown founded the Law Offices of Robert E. Brown, P.C. in 2006. Before
opening his own firm, Mr. Brown worked as a lawyer for the international firm of
Fried, Frank, Harris, Shriver & Jacobson, and the renowned firm of Slotnick, Shapiro
& Crocker - a leading criminal defense and matrimonial boutique.