Oct 17 2014

Everybody seems to have at least some understanding of entrapment. From a common layperson’s perspective, the idea usually comes up in the context of a situation where an under cover cop pretends to buy or sell an illegal product or service and then arrests the other person involved in the transaction. While this could be entrapment, whether it legally is really depends on a number of intricate factors.

New York law Penal Code Section 40.05 defines Entrapment and when it is applicable. The first thing to note with regard to the defense is that it is an affirmative defense. This means that, unlike with most other defenses, it is the responsibility of the defendant to prove by a preponderance of the evidence that he was entrapped. This means that the prosecution is under no legal obligation to disprove the entrapment beyond a reasonable doubt. Under New York law, there are several situations where a defense needs to be disproven by the prosecution, rather than be proven by the defendant. This isn’t one of them. What this means is that once the prosecution brings evidence which proves that the defendant engaged in the illegality in question, the birder is on him to provide evidence that the only reason he did so was because he was entrapped. Then, if a jury finds, based on the evidence, that it was more likely than not that he was entrapped, he is found not guilty. But how does one actually succeed in proving he was was entrapped? For starters, it’s not easy.

Pursuant to New York law, a defendant has to prove two things. He has to prove: (1) that he was “induced or encouraged” to commit the crime by a public servant (or by a person working in cooperation with a public servant), who was seeking to to obtain evidence against him for the purpose of a criminal prosecution, and (2) the methods used to obtain the evidence were such as to create a substantial risk that the offense would be committed by a person not otherwise disposed to commit it.

The reason the defense rarely works is because of the second prong. I’ll give you two examples to illustrate the complexity of entrapment as a defense. Before continuing, I guess I should take the time to apologize for these seemingly sexist examples. I’m sure there are better ways to illustrate how an entrapment defense could work without resorting to Jezebel-type hypotheticals, but my mind seems t0 be drawing a blank. Sorry..

Example 1- It is mid-January and is very cold. An under cover male police officer goes to an outdoor area in town that is known to be frequented by prostitutes and by patronizers of prostitutes. He then goes up to scantily clad woman who is wearing visible garter belts and stiletto heels. Her clothing is inconsistent with the weather and the location (it’s out on the street and not a nightclub, etc). He then approaches her and strikes up a conversation which immediately gets flirtatious. Within literal seconds of him approaching her, the under cover asks the woman how much it will cost for her to have sex with him. The woman then gives him a number and she gets into his car. The woman is then placed under arrest and is charged with prostitution. A run of her criminal record quickly reveals that she has previously been convicted of prostitution-related offenses and the police found a large number of condoms in her bag.

Example 2- An under cover female officer goes to a quiet Irish pub on a Wednesday night. She is scantily clad. The pub is one of those Golden Tee/Buck Hunter places that is not known to be a place where prostitutes or their patronizers go. It is empty. She then strikes up a conversation with several men, none of whom are particularly interested in her. Before long, she finally gets into a conversation with a guy named Bill. Bill is a hardworking accountant who has never been arrested before. He is married and has 2 kids. His marriage is failing because he is working too hard and because he likes to frequent pubs to unload the stress. He is a religious man who never in his life solicited a prostitute. He, is however, having a very bad day. When the under cover police officer strikes up a conversation with him, she asks him a lot of questions about his life. Bill is attracted to the officer and can’t believe how his luck has turned around. He immediately starts envisioning a future where he trades in his wife for this woman. She’s asking him about himself, he’s asking her about herself. It’s love at first sight. Then at some point, the under cover asks him if he’ll come home with her. Bill is ecstatic. Then she drops the bomb on him. She says it’ll cost him him $500. Bill is now sad again and he says “no thanks” as he begins to weep. He really wants to have sex with her, but he’s not that kind of guy. She then buys him a drink and says “how ’bout $400 then.” Bill again says no as he sulks. She then buys him a shot and another drink. Bill again says he can’t cheat on his wife, even if things aren’t working out. She then buys him another drink and Socratically asks him all sorts of questions about his wife that leads Bill into concluding that he should just have sex with the prostitute. He then reluctantly agrees and immediately starts to feel “dirty.” He then steps out of the bar with the woman and is placed under arrest for patronizing a prostitute.

So in which situation would an entrapment defense be more likely to succeed? If you look at them, they’re both relatively similar in that the under cover police officer approached the defendant and affirmatively solicited the criminal conduct. And in both situations, the defendant was arrested after complying with the request by the officer. Despite these similarities, an entrapment defense would be more likely to succeed in example 2. The reason is because of the second prong of the defense listed above. While it is true that the under cover “induced or encouraged” the criminality, in example 1, it is significantly more difficult to prove that the alleged prostitute was not “otherwise disposed” to commit the crime of prostitution. This is based on the totality of the circumstances. Compare this to the second example where the under cover sought a broken man and withered him down to the point where he finally agreed to break the law. It wouldn’t be hard for him to tell a jury that he never would have engaged in the illegal conduct but for her persistence. This is fundamentally different than the first example, where it is likely that the prostitute was going to break the law regardless of whether her patron was a cop or not. Of course, whether the defense works, will depend on the jury’s evaluation of the evidence.

So why is it difficult to prevail with an entrapment defense? Because the cops deliberately target people who are likely going to break the law anyway and they are trained to not cross the line. However, it does happen.

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