State laws vary, but there are generally two ways to prove a trap: A subset of the trap defense was first recognized by the Supreme Court in Raley v. Ohio. [35] There, four defendants testified before a committee of the Ohio State Legislature. The chair of the committee told them that they could assert their right to self-incrimination. They asserted this right and refused to answer questions. However, Ohio law granted them immunity from prosecution, so the right to self-incrimination was not applicable, and they were then prosecuted for failing to answer questions. The Supreme Court overturned three of the four convictions based on the doctrine of incarceration by estoppel. (The fourth declined to make his speech, after which the committee found that the right to self-incrimination did not apply to this issue.) Keep in mind that your story, character, and intent should not come into play when contemplating a trap. The only thing that should count is the behaviour of the police officer at the time of the trapping. This was called the “subjective” test of captivity because it looked at the mental state of the accused.

In all cases, however, unanimous opinions had argued for an “objective” test, focusing instead on whether the conduct of police or other investigators would catch only those who are “willing and willing to commit crimes.” [31] According to the objective approach, the personality of the accused (i.e. his predisposition to commit the offence) is irrelevant, and the test would be the possibility that the conduct of the police would incite a law-abiding person considered abstract. According to proponents, this avoided the dubious question of implied legislative intent on which the Sorrells court had relied, and instead justified the defence of incursion, such as the exclusionary rule, into the court`s oversight role over prosecutions. And, as with the exclusion rule, they would have let judges, not jurors, decide whether an accused was imprisoned on legal grounds. [32] Winifred regularly visits Narcotics Anonymous (NA) for his heroin addiction. All NA participants know that Winifred is a dedicated member who has been clean for ten years, Marcus, a law enforcement decoy, meets Winifred at one of the meetings and asks them to “connect” him with heroin. Winifred refused. Marcus attends the next meeting and follows Winifred to his car and begs her to bring him heroin. After listening to Marcus explain in detail his physical withdrawal symptoms, Winifred takes pity on her and promises to help Marcus.

She agrees to meet Marcus with the heroine in two hours. When Winifred and Marcus meet at the designated location, Marcus arrests Winifred for selling narcotics. Winifred might be able to invoke trapping as a defence if its state recognises the subjective defence of trapping. Winifred has not used drugs for ten years and has not contacted law enforcement. It is unlikely that the intention to sell heroin came from Winifred because she was a devoted member of NA and met Marcus at an NA meeting while trying to maintain his sobriety. So it seems that Marcus pressured Winifred to sell heroin in exchange for a natural predisposition, and the trap defense may excuse her behavior. The courts initially saw the defence dark. The New York Supreme Court declared in 1864 that “he never used it to protect crimes or make amends to the author, and it is safe to say that according to any civilized, not to say Christian, code of ethics will never be the case.” [22] [Note 1] Forty years later, another judge in that state upheld this refusal, arguing that “[the courts] should not hesitate to punish the crime actually committed by the accused” if they rejected the alleged trap in a major theft case.

[23] In Sherman v. United States,[27] the court considered a similar case in which an addict working with agents of the Federal Bureau of Narcotics (a predecessor agency of the current Drug Enforcement Administration (DEA)) asked another to sell him drugs on the assumption that his own efforts had failed. Again, unanimously, his opinion focused more clearly on the defendant`s predisposition to commit the crime and, on that basis, also overturned Sherman`s conviction because, despite having already been convicted twice for drug trafficking, five years ago. In addition, he tried to rehabilitate himself, he had not profited from sales and no drugs were found in his apartment during the search, indicating the absence of a predisposition to violate drug laws. “In order to determine whether a trap has been established,” he said, “a line must be drawn between the trap for the negligent innocent and the trap for the reckless criminal.” [28] German law generally prohibits[9] inciting, persuading or attempting to commit a crime. [10] However, the Federal Court of Justice has held that the intervention of undercover officers is not a reason to stay the case per se. [11] If undercover agents have been used without adequate justification, the penalty for the offence committed may be reduced. [12] Hans demonstrated a police trap with Greg by convincing Greg that he could not be prosecuted for a criminal offence. Therefore, a defense attorney could help Greg deal with these allegations. Trapping focuses on the origin of criminal intent.

If the criminal intent comes from the government or law enforcement, the defendant is imprisoned and can invoke the defence. If the criminal intent emanates from the accused, the accused acts independently and can be convicted of the crime. The two criteria for trapping are subjective trapping and objective trapping. The federal government and most states recognize the subjective trapping defense (Connecticut Jury Instruction on Entrapment, 2010). Other states and the Model Penal Code have adopted an objective defence based on the trap (People v. Barraza, 2010). Unlike creating an opportunity, a trap occurs when law enforcement officials excessively push, harass, or encourage a person to commit a crime when they would not otherwise. A trap may arise from the use of threats, intimidation, prolonged fraud, or other means where the defendant was essentially forced to commit a crime. However, other states use a subjective standard to assess trapping. Under the subjective standard, the court or jury evaluates the actions of law enforcement officers against the defendant`s charge of committing a crime and considers what was the main motivating factor for the crime. Therefore, the onus is on the defendant to prove that the actions of the government officials were so presumptuous and extreme that they were the primary reason for the crime, or that the defendant had no prior motivation or disposition to commit the crime.

This is often a much more difficult standard to meet than the objective standard. Objective trap defence focuses on the behaviour of law enforcement agencies rather than the individual accused. If law enforcement employs tactics that would induce a reasonable and law-abiding person to commit the crime, the defendant may successfully invoke the defence of entrapment in an objective trap jurisdiction. The objective defence of the trap focuses on a reasonable person, not the actual defendant, so the defendant`s predisposition to commit the crime is irrelevant. In States that recognize the objective defence of trapping, the defendant`s criminal record is not admissible to refute the defence. However, other States had already begun to overturn convictions on the grounds of trapping. [24] Federal courts have recognized trapping as a defence, beginning with Woo Wai v. United States, 223 F.1d 412 (9th Cir. 1915). [25] The U.S. Supreme Court declined to consider the issue of Casey v. United States,[26] because the facts of this case were too vague to permit a final decision on the matter; But four years later, it was.

In Sorrells v. The United States,[2] the Supreme Court unanimously overturned the conviction of a North Carolina factory worker who had yielded to repeated requests from an undercover agent to provide him with alcohol. He identified the crucial issue as “whether the accused is an otherwise innocent person whom the government wants to punish for an alleged crime that is the product of the creative activity of its own officials.” [2] Determining whether an accused has been harassed or compelled to commit a crime is a difficult task that requires a thorough assessment of the circumstances. In some states, an objective standard is used to assess the trap, which means that the accused must prove that the tactics used by government officials were such that any reasonable person would have been led to commit a crime. Winifred has a criminal record for prostitution. A law enforcement luring offers Winifred $10,000 for sex. Winifred quickly agreed. If the Winifred jurisdiction recognizes the objective trap defense, Winifred might be able to successfully assert trapping as a defense against prostitution. A sensible, law-abiding person might be tempted to prostitute himself for a substantial sum of money, such as $10,000.