Why It's Almost Never Entrapment

30 April 2020
 Categories: , Blog


When a client and a criminal law attorney discuss a case, one topic that may come up is entrapment. Although a criminal defense attorney will want to check whether entrapment occurred in a case, they're also going to be quick to move off of the idea unless there's massive evidence of police misconduct. Clients have a right to know, however, why a lawyer is quick to assume it's never entrapment. Here's what you should know about entrapment as a possible legal defense.

What Entrapment Actually Is

For the conduct of the police to be considered entrapment, it has to include significant effort to provide an idea for a crime to the defendant. Generally, the behavior also has to be persistent. Similarly, the encouragement has to be something that would compel an otherwise law-abiding person to commit a crime.

Suppose a cop was trying to infiltrate a group of suspected bank robbers. If there's clear evidence that planning for a bank robbery was already underway, there's close to no way to argue the officer's contribution to making it happen was entrapping. Other factors, such as long rap sheets for previous crimes, would also make an entrapment defense hard to present. Conversely, if the officer came into contact with a group that had no history of crime and wasn't involved in active planning, the conduct might be entrapment.


It's the standard operating procedure for trained and experienced police members to stick to a plan that involves providing opportunity. For example, an officer might insinuate themselves into a drug-dealing ring and then offer the dealers an opportunity to purchase drugs from a fictional supplier. As long as the officer doesn't repeatedly badger a reluctant defendant into taking the offer, this is considered legal. The cop is merely providing someone the opportunity to commit a crime.

Burden of Proof

Entrapment is classified in most states as an affirmative defense. This means the burden of proof rests with the defense to show that the preponderance of the evidence points to police misconduct. If a criminal defense attorney elects to go this route, they'll likely use the discovery process so they can examine police communications about the case.

Why the Defense is Usually Avoided

A failed entrapment defense leaves a defendant in a very bad position. To claim entrapment means to admit to doing the crime. Once the defense crumbles, it's hard to take back that admission. Consequently, a criminal law attorney will only even consider an entrapment claim if they think it is a slam dunk.

For more information, reach out to a company like Daniels Long & Pinsel.