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Entrapment: A Case Study

Most people have a grave misunderstanding of entrapment and how useless it is as a defense in court. Most folks believe that the cops cannot “generate crime.” They can. In fact, they do it as a part of sting operations all the time.

In one case, a federal agent let it slip that he was sitting on a stash of cocaine bricks valued at about $2 million. He got a few associates to help him with the stash, but they were all arrested for criminal conspiracy and drug trafficking. One of the crew was a recovering heroin addict who could not afford to go into recovery although his health was failing. The addict was charged with two weapons violations, even though he never touched a gun, and conspiracy to distribute cocaine. The amount of cocaine was high enough to trigger a mandatory 10-year sentence under federal guidelines.

Now, you may be inclined to think that the story above is entrapment, but it is not. Even though there was no real crime, all the drugs belonged to the ATF, and the men would not have been there but for an ATF agent telling his drinking buddies that he had a goldmine, all the men will be charged with conspiracy to traffic cocaine they did not know existed until the ATF agent told them.

Why is That Not Entrapment?

Entrapment is an affirmative defense. That means that the burden of proof is shifted to the defendant in cases in which they use an entrapment plea. Proving entrapment is quite difficult. You are essentially admitting that you committed the crime, but would not have done so unless you were induced to do so by law enforcement. Inducement is the key, but it means more than simply providing a criminal with an opportunity. That is why cops can pose as sex workers and nab johns on misdemeanor charges.

To prove entrapment, you must be able to establish that not only did law enforcement create the crime, but that it was outside the scope of your character to commit it. Alternatively, some courts require that the defendant establish that any law-abiding citizen would have been induced to commit the crime had law enforcement offered them the opportunity.

Objective Versus Subjective Standards

There are two standards in entrapment cases, the objective standard and the subjective standard. Thanks in large part to the subjective standard, no one with a criminal record can ever raise an entrapment defense. Why not? Well, the jury is asked to determine if the individual was (for the most part) a law-abiding citizen whose character would not allow him to commit a specific crime. The subjective standard thus allows the prosecution to bring in evidence of previous crimes to establish the defendant’s character and whether or not it would be against his nature to commit a specific crime. Since he has committed similar crimes in the past, the jury is forced to conclude that he is of a disposition to commit the crime giving the police broad leeway to target those with criminal records.

Yet another reason why accepting a plea may not be in your best interests.

Talk to a Chicago Criminal Defense Attorney Today

Entrapment is difficult to prove and most criminal defense attorneys will not raise it as a defense unless there is clear evidence that their client was somehow blackmailed or otherwise coerced. For more information on strong defenses, call David Freidberg today at (312) 560-7100 and we can discuss potentially successful defenses to your charges.

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