By Criminal Defense Lawyer Jeremy Rosenthal
Entrapment is a tricky concept. It occurs when law enforcement convinces someone to commit a crime. It gets confusing because the entrapment must go beyond merely affording someone the opportunity to commit a crime.
The law further says the enticement must be enough to persuade a normal, law abiding citizen with an ordinary resistance to committing a crime. A good rule of thumb when thinking of entrapment is to see where the original intent of the crime originated – with police or the accused?
Entrapment is a defense to prosecution and Texas Penal Code 8.06 says:
(a) It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
(b) In this section “law enforcement agent” includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents.
Example of Situations Which are Entrapment:
- A recovering addict is getting addiction treatment. An undercover police officer meets the addict in the lobby of the counselor. The undercover asks the addict to provide illegal drugs. The addict refuses citing his attempt at recovery. After repeated attempts to convince the addict, the addict gives in and attains and delivers drugs to the undercover officer. See Sherman v. United States, 356 U.S. 369 (1958).
- Undercover officer makes repeated attempts at having defendant provide access to drug dealers and drugs after defendant was reluctant after 12-year relationship. See Torres v. State, 980 S.W.2d 873 (Tex.App. — San Antonio, 1998).
Example of Common Situations Which Are Not Typically Entrapment
- Person sells drugs to undercover police officer;
- Persons who seek out and hire a hitman to kill someone;
- Public servant who is offered a bribe and accept it.
Other Thoughts on Entrapment
Candidly – there is a strong bias against the entrapment defense by judges and juries. Entrapment is more of an academic argument for that reason – and typically the most a court can do in a case of entrapment is give the jury an instruction they can acquit an accused on that basis. So even if the person meets the legal pre-requisites of entrapment a jury still might not buy it. Most people think the government conduct would have to be so outrageous as to strongly over-shadow the crime committed.
*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization. He has been designated as a Texas Super Lawyer by Thomson Reuters.