An individual calls a cell phone number, and a man answers, “Who is this?” The caller asks about buying cocaine. The man denies knowing anything about what the caller wants and hangs up. Twice more, the caller tries to purchase drugs with no success. Finally, the caller catches the man walking out of his apartment, threatens to report the drug dealing to the man’s landlord, and convinces him to complete the drug sale. Later that day, the man is arrested for selling illegal drugs to an undercover officer. The arrested man may have a defense to the offense they were coerced to commit.

Entrapment as an Affirmative Defense: Understanding Its Key Elements and Legal Application

Entrapment is the use of deceit, threats, or harassment to convince a law-abiding individual to commit an illegal act. So, a defendant who can prove that they would not have committed an offense had law enforcement or its agents not coerced them may have an entrapment defense. Entrapment is an affirmative defense to criminal charges, meaning the state must exonerate a defendant who proves entrapment. The defense is founded on the public policy of discouraging unfair and aggressive police tactics that lure innocent people into committing crimes. In other words, the state should not be able to deceive or coerce those who would not otherwise commit crimes into violating the law.

Key Components of a Valid Entrapment Defense and How They Apply in Criminal Cases

An entrapment defense requires proof that a law enforcement officer or their agent induced a defendant through lies or encouragement to commit a crime. Thus, when an officer persuades someone that it is legal to purchase a gun at a reasonable price from a friend who is not a licensed firearms dealer, the first element of fraud is satisfied. The officer’s misrepresentation of how guns are legally purchased is not true. So, when an innocent person who would not have purchased a weapon illegally buys the gun from the “friend,” they commit a criminal offense in New Jersey but may have an entrapment defense. Likewise, the undercover officer who threatens to report a college student for selling fentanyl unless the student delivers illegal drugs to the undercover officer’s “business associate,” an entrapment defense may get the student an acquittal for drug charges. When the fentanyl sales allegation is untrue, and the student would not have delivered the drugs but for fear of going to jail, an entrapment defense is likely to succeed.

Persuasion and threats are not the only methods a law enforcement officer may use to entrap a defendant. They can harass an individual until they commit the illegal act, like the undercover officer repeatedly insisting on buying drugs from someone who denies the request each time until finally acquiescing. The victim may not sell drugs but hooks the officer up with someone they know who does. Both the drug dealer and intermediary may face arrests. However, merely providing an opportunity to commit a crime, like giving someone money and a promised commission to buy illegal guns, drugs, merchandise, or state secrets, is not the same as entrapment. There must be fraud, threats, or harassment that coerced the defendant to commit an offense. If a law-abiding citizen would not have taken the money, the defendant is unlikely to prove entrapment. Without coercion, the defendant appears to have merely chosen to take advantage of a money-making opportunity.

The reluctant intermediary for the drug sales must prove that they were not predisposed to getting involved with illegal drugs before the undercover agent harassed them into setting up the sale. A defendant asserting an entrapment defense must show that they were law-abiding citizens before the government’s tactics to get them to commit a crime.

Proof that a defendant was not predisposed to a crime before the incident in question may be their clean criminal record or good character, as attested to by respected colleagues, employers, teachers, and family members, their awards and accolades for community work, or entrusted positions as fiduciaries. On the other hand, a defendant who quickly joins the undercover agent’s illegal scheme may seem willing to commit a crime, even with a clean criminal history and good character.

Evidence Standards for a Successful Entrapment Defense in Criminal Cases

The defendant, not the prosecution, has the burden of proof to prove the affirmative defense by a preponderance of the evidence. This means that the defendant must convince a jury that the evidence suggests, more likely than not, that the defendant would not have broken the law in the absence of the law enforcement officer’s fraud or incitement. As such, the defendant must have persuasive evidence. For instance, a defendant can testify to what the officer or officers said to threaten, harass, or deceive them. They can also attest to their state of mind in response to the government’s actions, demonstrating their unwillingness to commit a crime as a law-abiding citizen.

Law enforcement officers are likely to testify to the events differently, detailing the defendant’s words and actions that show their willingness to participate in an illegal transaction. They may even provide evidence of the interactions and conversations recorded by a nearby store surveillance camera. Most often, defendants must rely on circumstantial or indirect evidence to infer facts proving the defense. Witness testimony from those who saw the officers approach the defendant, documented proof of telephone conversations, or other physical and documentary evidence that corroborates what a defendant claims occurred may circumstantially prove that law enforcement coerced an unlikely criminal defendant.

When Does Persuasion Become Coercion? Disentangling Entrapment from Valid Investigative Techniques

The police may not coerce someone to commit a crime, but they may provide the opportunity for one with an ongoing criminal history to commit a crime. Sting operations are legal, so when a police detail sends a female officer posing as a prostitute to a location known for sex trading, like a brothel, the purchaser of sex services from the undercover officer is not a victim of entrapment; the police have merely provided a willing participant an opportunity to commit a crime. Likewise, a sting operation to catch car thieves by leaving dummy unlocked cars along a public street is legitimate police work. No coercion is involved, and the operation only lures those predisposed to commit car theft to the bait.

Building a Strong and Effective Entrapment Defense With New Jersey Skilled Attorneys

Explain that an attorney can help you create a solid defense, regardless of the charges you are facing, and that they can help to challenge the prosecution’s case in a court of law. With sufficient evidence, a defendant may prove a successful entrapment defense that exonerates them. A prosecutor may review evidence of the entrapment claim and dismiss the charges. Otherwise, a jury can acquit the defendant who proves entrapment. If you face charges for crimes that law enforcement entrapped you to commit, consult with an experienced criminal defense attorney at The Tormey Law Firm to review your case. We will meticulously review your case, and if our lawyers see evidence of entrapment, we will develop a defense strategy to challenge the state’s charges based on this defense approach.

Regardless of the charges, contraband sales, soliciting a prostitute, vehicle theft, or other offenses, our defense team can interview witnesses, review police officer personnel history, and collect physical and documentary evidence to discredit officer witnesses and prove entrapment. A jury may not believe police officers with a history of citizen complaints, either, so we look at the case from every angle to find the holes and weaknesses that we can use to your advantage. If your case heads to trial, we can also help zealously defend you in front of a jury, including by cross-examining state witnesses and presenting issues to raise doubts about the prosecution’s case. An acquittal requires that a jury doubt whether you committed the alleged offenses for which the state seeks a conviction. Contact a criminal defense attorney at our New Jersey law firm to help you beat the charges. We proudly serve clients in Princeton, Newark, Trenton, Camden, Morristown, Atlantic City, and across New Jersey. Start today with a free consultation by sending us an email or calling (201) 556-1570.