Entrapment By Police in California
If law enforcement, such as an undercover officer, pressured you into committing a crime you wouldn't normally have committed, you might be able to use entrapment as a defense.
Entrapment is frequently used as a defense in undercover sting operations. However, it is only effective if you can prove that the police acted improperly to persuade you to commit the crime and that they did so solely to lure you into it.
If your defense succeeds, your charges should be dismissed because your right to due process was violated.
Police entrapment is recognized as a legitimate legal defense. It occurs when a person commits a crime only because a police officer enticed or convinced them to do so.
Essentially, without police persuasion, the individual would not have committed the offense.
If you can demonstrate that law enforcement entrapped you, the District Attorney's Office must dismiss the criminal charges. While this legal defense can be challenging to prove, it is possible depending on the particular crime involved.
Example of Entrapment
A common example of police entrapment happens in undercover stings related to Penal Code 647(b), which covers solicitation of prostitution. In these cases, female officers often impersonate prostitutes and try to persuade individuals to offer money for sex.
If an undercover police officer excessively persuades or verbally coaxes a perpetrator into committing a prostitution offense, it may be considered entrapment.
Undercover officers are crucial in apprehending individuals suspected of violating California Penal Code 311 PC concerning child pornography. These officers, who pose as minors in online platforms like chat rooms, work to persuade suspects to request images or videos of child pornography.
What Defines Entrapment in California?
The state's definition of entrapment is outlined in California Criminal Jury Instructions 3408 says, "A person is entrapped if a law enforcement officer or their agent engaged in conduct that would cause a normally law-abiding person to commit the crime."
The defendant's mental state is crucial for proving entrapment; if the defendant was already inclined to commit the crime, the court will not accept entrapment as a valid defense, even under different circumstances.
The police cannot be held responsible for exploiting an opportunity created by the defendant. However, if the defendant had no intent to commit a crime and even resisted when approached, they may assert entrapment as a defense.
Readers should understand that entrapment occurs when a "normally law-abiding person" is persuaded to commit a crime they wouldn't have otherwise.
This concerns instances where police behavior becomes excessively aggressive through methods such as pressure, harassment, flattery, deception, or intimidation. Typically, courts hold that a reasonable person, given the opportunity to commit a crime, would decline it.
Proving Police Engaged in Entrapment
To convict you of a crime, the prosecutor must prove every element of the offense beyond a reasonable doubt. This is the highest standard of proof. It means the evidence is so strong that there is no reasonable doubt you committed the charged offense.
Therefore, although an entrapment argument might establish reasonable doubt, the burden now shifts to you to prove police guilt by a preponderance of the evidence—meaning it must be more likely than not.
You may claim entrapment if the police used any of the following methods to induce you to commit a crime:
- Fraud: This goes beyond simply lying or creating a false identity; it's about persuading someone that their upcoming action is legal, even though it is actually a crime.
- Harassment: Using threats, pressure, or repeatedly insisting on committing a crime.
- Pressure: Shaming the individual by referencing their friendship or mocking them for criticizing the crime.
- False promises: For instance, tempting you with a significant amount of money.
When Entrapment Defense Does Not Apply
You likely cannot claim entrapment if the officer:
- Was just functioning as an undercover agent. Going undercover is not inherently entrapment.
- Merely providing an opportunity to commit a crime does not imply guilt. Remember, a typical law-abiding person wouldn't commit the crime simply because the chance was available; they would need to be pressured.
- I assure you, you weren't 'set up.' This is a common aspect of undercover stings. As long as the officer doesn't falsely claim an illegal act is legal, they haven't entrapped you.
Imagine an undercover agent attempting to catch drug dealers in the act. The agent approaches a potential suspect and requests to buy drugs.
The suspect initially declines but eventually agrees after the agent's persistent persuasion. Although the police may have employed coercion and deception to induce the crime, the suspect was not considered entrapped because he was already inclined to sell drugs.
The Burden of Proof in Claiming Entrapment
Unlike prosecutors, who must demonstrate your guilt "beyond a reasonable doubt," your responsibility to prove entrapment under CALCRIM 3408 is based on the "preponderance of the evidence."
This means you don't have to prove you didn't commit the crime or that you would never have done it. Instead, you just need to demonstrate that it's more probable than not that the police coerced, harassed, or defrauded you into committing it.
Entrapment is a factual question that a jury must determine. In essence, the jury decides whether the defendant was entrapped. If you prove that your crime resulted from entrapment, the charges against you should be dismissed.
Readers should note that to make an entrapment argument, the police officer's conduct must be so excessive that it coerces you into committing the crime.
Additionally, through early negotiations with law enforcement and the prosecution, we may be able to persuade them not to pursue formal criminal charges initially, a process known as a "DA reject."
Cron, Israels & Stark are California criminal defense lawyers based in Los Angeles, serving people across Southern California. Contact us for a case review.
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