Entrapment Defense

Entrapment is a complete defense to a crime.  Entrapment occurs when law enforcement engages in conduct that causes an otherwise normally law abiding person, to commit a crime.  This includes badgering, persuading, flattery or coaxing, repeated and insistent requests, and an appeal to friendship or sympathy.

In order for a defense of entrapment to apply there must be some evidence that “a law enforcement officer… engaged in conduct that would cause a normally law-abiding person to commit the crime.” Jury Instruction 3408.

The Burden of Proof for an Entrapment defense is on the Defendant.  However, Defendant need not show the defense beyond a reasonable doubt.  The court uses a lesser standard called Preponderance of the Evidence. This means, defendant must show that it is more likely than not that he or she was entrapped.

• A guarantee from law enforcement that the act is not illegal may be Entrapment.
• A guarantee from law enforcement that the act will go undetected may be Entrapment.
• Law Enforcement conduct that would make the act unusually attractive may be Entrapment
• A law enforcement offer of an extraordinary benefit if the act is conducted may be Entrapment.

The court has held that the use of decoy programs, such as ruses and stings, to expose illicit activity does not constitute Entrapment, so long as no pressure or overbearing conduct is employed by the decoy.  (Provig Corp. v. Alcoholic Beverage Control Appeals Board (1994) 7 Cal.4th 561, 568-570.)

However, the conduct of an unwitting decoy may also constitute sufficient badgering, cajoling, or importuning that entitled defendant to the defense.  (Bradley v. Duncan (9th Cir. 2002) 315 F.3d 1091, 1096-1098.)

A defendant may assert Entrapment, but still deny Guilt.  That is, he or she can say “I didn’t do it” at the same time as saying “Whatever I did do, was because I was Entrapped.”  (People v. Perez (1965) 62 Cal.2d 769, 775-776.)

When determining whether defendant is Not Guilty because of Entrapment, the jury must consider

1. The conduct of law enforcement;
2. Whether such conduct was likely to cause a normally law-abiding person to commit the crime;
3. Events that happened before the crime;
4. Defendant’s responses to the officer’s urging;
5. The seriousness of the crime; and
6. how difficult it would have been for law enforcement officers to discover that the crime had been committed.

If you or a loved one are accused of a San Diego Criminal Offense and the Crime was committed because of Entrapment, give our Entrapment Defense Attorneys a call for a Free Analysis by calling 619-708-2073 or emailing us at attorneys@hullingerfirm.com.