One of the most widely misunderstood concepts in American law is the notion of entrapment. The legal definition of entrapment is an action by the police, a prosecutor, or another law enforcement official that encourages or forces a person to commit a crime. Especially given how involved certain figures, such as undercover cops, can be in investigations, it may seem like there's ample opportunity for entrapment to happen. If someone asks a criminal defense attorney to consider such an argument, though, they should be prepared to have at least one of the three following conversations.
The Cops Were in on It
The presence of a police officer during an offense does not inherently make it entrapping. Likewise, it's a myth that a cop has to tell you that they're undercover. Most police officers will only disclose their status as undercover cops if they feel it will get them out of a life-threatening situation. Even if an undercover cop seemed to happily help you load a truck full of stolen electronics, for example, the judge is just going to view that as part of the job.
Whose Idea Was the Crime?
It's worth taking a moment to consider what actually would be an entrapping action by a police officer. Suppose the cops are building a drug case and an undercover officer repeatedly pleads with the defendant to sell cocaine to them. Presuming the defendant made significant efforts to avoid making a sale, persistently asking for drugs would be seen by most judges as entrapment.
Notably, when entrapment occurs, it's often less-trained people working on behalf of the police. For example, an overzealous confidential informant may go overboard trying to make a case. It's rare for experienced police officers, which covers nearly all investigators, to do anything even remotely entrapping.
Presenting an Opportunity
A big distinction in entrapment arguments is the question of encouragement versus simply providing an opportunity. Consider how prostitution stings often unfold. A police officer might ask a suspected prostitute if they "know where the party's at," a recognized socially coded way of talking about many types of illegal activities.
If the suspect responds favorably and makes repeated attempts to move ahead with a transaction, this is not considered entrapping. No law-abiding person would, for example, get into a stranger's car and quote prices in coded speak for sex acts. A court will note that the cop merely presented the suspect with the opportunity to commit a crime.
For more information, contact a criminal defense attorney.
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