Legally speaking, entrapment occurs when a police officer or other government agent deceives a person into committing a crime that he or she had no intention of committing. In many jurisdictions, if a court determines that the charges against the defendant are based on entrapment, he or she cannot be convicted of the crime. Therefore, criminal defense lawyers might claim police or governmental entrapment as part of their strategy. The laws against this type of behavior by police or government agents are intended to prevent law enforcement agencies from coercing a citizen into committing a crime, then arresting him or her for the act.
Entrapment charges often stem from vice crimes, such as those that involve drugs, gambling or prostitution. Law enforcement agencies typically have the legal right for their officers to pose as drug dealers, prostitutes, gambling bookmakers or other professional criminals. Contrary to popular belief, in many jurisdictions, these undercover agents are not obligated to reveal their true identities or legal affiliation when asked. It also is generally not considered police entrapment if an undercover officer presents a supply of drugs to a potential buyer, for example. The buyer of those drugs commits a crime as soon as the deal has been made, not during the initial contact with the undercover officer.
Law enforcement officers must be aware of their limitations during a sting operation to avoid later accusations of entrapment. An undercover officer working as a prostitute, for example, generally cannot initiate a conversation that leads to the customer's solicitation offer. A defendant arrested for solicitation of a prostitute could claim that the undercover officer was flirtatious or made physical contact before identifying himself or herself as a prostitute. An argument could be made that the solicitation was based on the officer's behavior, not on the defendant's prior intent to commit a crime.
Claims of entrapment can be notoriously difficult to prove. Some successful claims against law enforcement agencies have centered around the idea of a virtue test. Police typically cannot select random citizens to participate in organized sting operations in hopes of generating an arrest. There must be some compelling evidence that a specific individual has a propensity for committing such a crime.
Another reason why entrapment is difficult to prove in court is the criminal history of the defendant. If the prosecution can demonstrate a previous history of similar crimes, then it becomes extremely difficult to prove entrapment. Merely providing an opportunity to commit a crime is not considered entrapment.
This is why police stings that involve Internet sex crimes have often been successful. Defendants might claim that adult police officers posing as underage chat room participants engage in entrapment, for instance. The reality, however, often is that an undercover agent merely provided an opportunity for the suspect to initiate an illegal conversations.
There have been many successful entrapment defenses mounted throughout the years, including some that involved high-level government stings. The operation itself might become criminal in nature, or an overzealous agent might use coercive techniques to pressure someone into committing a crime. Many instances of possible entrapment have become high-profile cases.
