Entrapment and Quicksand
Neff Strategies wellness director Laura Barnes was riding in the car with me last week and made me laugh out loud:
“You know, I was really worried about quicksand when I was little. All those cartoons used to show people regularly drowning in quicksand. As it turns out, I didn’t have nearly as much to worry about as I thought.”
Entrapment for police is a little like quicksand for cartoon-watching kids. Seems ominous but easy to avoid when you’re educated.
Generally speaking, entrapment is an affirmative defense, which means it is the defendant’s burden to prove it.
The 1st element of entrapment – and the part the defendant must prove – is that the government induced him to commit the crime.
This is important now:
Inducement does NOT mean that government agents merely provided an opportunity for the defendant to commit the crime, and he availed himself of that opportunity.
Rather, it means that the government agent planted the seed of criminal design in the defendant’s head.
The 2nd element of entrapment – which shifts the burden to the government – is that the defendant was not already predisposed to commit the crime. It is the difference between an “unwary innocent” and an “unwary criminal.”
Factors include 1) prior criminal activity/record and character of defendant, 2) whether the criminal activity was originally suggested by defendant, 3) whether the defendant profited, 4) if defendant was initially reluctant but the government agent repeatedly attempted to persuade, 5) the nature of the persuasion used by the government agent.
When engaging in the use of undercover operatives or confidential informants, it is important for police to partner with their criminal justice “spouse,” the prosecutor. There should be a discussion of ways to avoid entrapping the targets of an investigation.
Recently, I talked with my friend and Neff Strategies teammate, Scott Payne. While working as a UC agent, Scott did not like wearing a wire in the beginning of an operation – for very good safety reasons.
No problem. Even though a prosecutor would likely prefer a real time recording, we can get around that by talking about how to capture earlier conversations later in the operation when a wire is being worn or is present at the location. It can also come through other strategies such as witness/suspect interviews, questioning of the defendant, et al.
Neff Strategies offers elite sophisticated training for law enforcement agencies on issues like this -- undercover ops, practical issues, and legal issues. Easy to avoid the quicksand when you know what to look for.
What we do in the streets echoes into the courtroom.
