The Entrapment Defense


“I was tricked into doing “XYZ” by the police,” is often said to a criminal defense attorney. After being charged with a criminal offense, clients often inquire about the defense of entrapment.  The street perception of the entrapment defense is that it is as simple as saying “that the cops made me do it.”

There is more to this legal defense than many people realize. Entrapment is a complex legal defense that requires a detailed analysis of the specific law and fact pattern as well as how it applies to a person’s case.  This defense is often difficult but it is not impossible and it should be carefully considered.

The entrapment defense is defined in statute 720 ILCS 5/7-12:

“A person is not guilty of an offense if his or her conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of that person. However, this Section is inapplicable if the person was pre-disposed to commit the offense and the public officer or employee, or agent of either, merely affords to that person the opportunity or facility for committing an offense.”

Reading the statute alone may give the reader a false impression that entrapment is a simple concept. There is more to this complex legal defense than the statute provides on its face.  There are decades of extensive case law further defining entrapment:

“Entrapment” has been defined by the U.S. Supreme Court in the following terms: “Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer.” Sorrells v. United States, 287 U.S. 435, 77 L.Ed. 413, 53 S.Ct. 210, 217 (1932). This definition of entrapment was expressly adopted by the Illinois Supreme Court in People v. Strong, 21 Ill.2d 320, 172 N.E.2d 765, 767 (1961). Traditionally, the entrapment defense has applied when the defendant was caught “red-handed” in an undercover, usually face-to-face operation and the defendant claims that he or she was induced to commit the crime by the actions of the government agents. The entrapment defense comes into play when the government’s deception actually implants the criminal design in the mind of the defendant. United States v. Russell, 411 U.S. 423, 36 L.Ed.2d 366, 93 S.Ct. 1637 (1973). In order for the defendant to raise entrapment as an affirmative defense, however, he or she must admit to committing the crime. (IICLE-[6.32] Entrapment)

When presenting an entrapment defense at trial, a defense attorney must understand the main issues involved with this defense. Additionally, the defense attorney must also understand where the burden of proof lies in presenting a case of entrapment before a Judge or Jury.  The burden shifts under certain conditions which are described below:

The question of entrapment involves two issues: inducement and predisposition. People v. Watycha, 272 Ill.App.3d 774, 651 N.E.2d 659, 663, 209 Ill.Dec. 481 (2d Dist. 1995). The defendant has the initial burden of proving that the state induced him or her to commit the criminal act. If this burden is met, the state has the burden to prove that the defendant was predisposed to commit the crime. People v. Boalbey, 143 Ill.App.3d 362, 493 N.E.2d 369, 97 Ill.Dec. 706 (3d Dist. 1986). Generally, a person is not guilty of an offense if his or her conduct is incited or induced by a government official for the purpose of obtaining evidence for the prosecution of that person. 720 ILCS 5/7-12; Jacobson v. United States, 503 U.S. 540, 118 L.Ed.2d 174, 112 S.Ct. 1535 (1992). Entrapment is an affirmative defense, which in effect imposes upon the state an additional element that must be disproved beyond a reasonable doubt. 720 ILCS 5/7-14. For this reason, the defendant’s predisposition is generally the critical inquiry, and the state must show that the defendant was ready and willing to commit the crime in the absence of any persuasion by the state. Watycha, supra, 651 N.E.2d at 663 – 664. (IICLE-[6.32] Entrapment)

Additionally, one potential danger that asserting an entrapment defense poses for a client is that they must “admit” to committing the crime. Note well that admissions of the wrongdoing are a prerequisite to assert the entrapment defense. While this “method” is typically inconsistent with most defenses and trial strategy at a criminal trial, it is a requirement to successfully prevail on an entrapment defense:

Once an accused presents even slight evidence of entrapment, the state must prove the absence of entrapment beyond a reasonable doubt. People v. White, 249 Ill.App.3d 57, 618 N.E.2d 889, 894, 188 Ill.Dec. 319 (1st Dist. 1993). A defendant who raises entrapment as an affirmative defense necessarily admits to committing the crime, albeit because of improper governmental inducement. People v. Rivas, 302 Ill.App.3d 421, 707 N.E.2d 159, 168, 236 Ill.Dec. 314 (1st Dist. 1998). This is because it would be both factually and legally inconsistent for a defendant to deny committing the offense and then to assert as a defense that he or she committed the offense because of incitement or inducement by authorities. People v. Gillespie, 136 Ill.2d 496, 557 N.E.2d 894, 896 – 897, 145 Ill.Dec. 915 (1990). Thus, the entrapment defense is not available to a defendant who denies any of the facts constituting the offense charged, including the requisite mental state. People v. Cooper, 239 Ill.App.3d 336, 606 N.E.2d 705, 715, 179 Ill.Dec. 873 (1992). Nevertheless, “this does not mean that a defendant who wishes to rely on the entrapment defense cannot plead not guilty and force the State to its proof on all the elements of the offense.” Id. The question, as framed by the Fifth District, is what constitutes a sufficient admission of commission of the offense to allow reliance on the entrapment defense. 606 N.E.2d at 715. (IICLE-[6.32] Entrapment)

As illustrated above, Entrapment is a complex legal defense that requires a comprehensive knowledge of the law and applying it to a client’s case.   A defense attorney must be well versed in the law and have the ability to carefully develop and execute this defense at trial.  As this defense is often difficult to prevail on, a careful analysis of the facts and law are required to determine if an entrapment defense would be viable to raise at trial.  Because doing so without a careful and analysis will have devastating consequences on the outcome of the client’s case.  Wigell Criminal Defense has been handling cases involving the entrapment defense for over 40 years.  If you believe that you are a victim of entrapment, please contact our office to discuss your matter with an experienced criminal defense attorney.

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