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A Guide to Inducement, Predisposition and Entrapment

We have seen a flurry of cases since 9/11 when apparent dupes were busted by undercover FBI agents or paid informants for assorted terrorist activities. The defendants in those cases appeared to be poor, mentally ill, intellectually limited or otherwise maladjusted and easy to enlist in plans to blow stuff up. Arresting, prosecuting, convicting and imprisoning them has served to keep fear alive which I think has been the primary purpose of these cases. I suspect that if left to their own devices most of these people probably would not have assembled the necessary missing pieces without government assistance. The legal question is whether they were entrapped.

Section 645 of the US Attorneys Criminal Resource Manual provides,

Entrapment is a complete defense to a criminal charge, on the theory that “Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.” Jacobson v. United States, 503 U.S. 540, 548 (1992). A valid entrapment defense has two related elements: (1) government inducement of the crime, and (2) the defendant’s lack of predisposition to engage in the criminal conduct. Mathews v. United States, 485 U.S. 58, 63 (1988). Of the two elements, predisposition is by far the more important.

Inducement requires a showing that the defendant had to be persuaded or coerced into committing the crime. Soliciting someone to commit a crime does not establish inducement. The evidence must show that the government’s behavior was such that “a law-abiding citizen’s will to obey the law could have been overborne.” United States v. Kelly, 748 F.2d 691, 698 (D.C. Cir. 1984).

Predisposition refers to whether the defendant was predisposed to commit the crime and took advantage of an opportunity provided by the government to commit it, as opposed to being an innocent person who is predisposed to act lawfully.

Section 645 states,

[P]redisposition should not be confused with intent or mens rea: a person may have the requisite intent to commit the crime, yet be entrapped. Also, predisposition may exist even in the absence of prior criminal involvement: “the ready commission of the criminal act,” such as where a defendant promptly accepts an undercover agent’s offer of an opportunity to buy or sell drugs, may itself establish predisposition. Jacobson, 503 U.S. at 550.

Nancy Reagan was fond of saying, “Just say no,” but if you don’t and a badge interrupts your happy dance, keep your mouth zipped, don’t consent to a search and give your lawyer a call asap.

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.