The Trap of Entrapment

The Trap of Entrapment

The defense of entrapment started life as a judicially created protection against overzealous law enforcement in the federal courts. “The entrapment defense, which developed in the 1920s, is yet another example of the courts’ exercise of inherent powers… The recognition and exercise of inherent or supervisory powers contain an element of protecting the judicial system’s interest in preserving judicial integrity, an interest distinct from protecting the rights of the litigants.” Discretion to Bar Reprosecution, 30 Loyola of Los Angeles L. Rev. 535, 537-38, n. 14 (January 1997). It was first recognized as a defense to crime by the United States Supreme Court in the case of Sorrells v. United States, 287 U.S. 435 (1932). The defense was rooted to the concept of legislative intent, that is, the Court held that Congress could not possibly have intended government manufactured crimes to be prosecuted and punished under federal law.

The entrapment defense arose as a creature of judicial ‘inference about congressional intent,’ rather than as a command in the express language of the Constitution or of most criminal statutes. United States v. Luisi, 482 F.3d 44, 52 (1st Cir. 2007). The defense exists to prevent ‘abuse[ ]’ of the ‘processes of detection and enforcement… by government officials’ who might instigate an illegal ‘act on the part of persons otherwise innocent in order to lure them to its commission and to punish them.’ Sorrells v. United States, 287 U.S. 435, 448 (1932). Government officials go too far when they ‘implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.’’ Jacobsen v. United States, 503 U.S. 540, 553 (1992)(emphasis in Jacobson)(quoting Sorrells, 287 U.S. at 442. Christian Diaz-Maldonado, 727 F.3d 130 (2013) State courts followed this example and carved out the defense of entrapment based on the same idea. In Connecticut, the defense of entrapment began as a court created defense, but it has been supplanted by statute. C.G.S.A. §53a-15 is the legislative defense of entrapment, and it is closely modelled on the federal doctrine carved out by the U.S. Supreme Court. It is important to recognize the similarities and the differences between the defense of entrapment in federal and state court—because there can be traps for the unwary. "On the one hand, at trial the accused may examine the conduct of the government agent; and on the other hand, the accused will be subjected to an ‘appropriate and searching inquiry into his own conduct and predisposition’ as bearing on his claim of innocence.” Sherman v. United States, 356 U.S. 369 (1958). And therein lays the possible trap for the unwary defendant. By raising the defense of entrapment, he may unwillingly open the door to prior misconduct otherwise inadmissible at trial.

The Tension

There exists a dynamic tension between the necessity to expose criminals for the purpose of bringing them to justice to prevent future crime; and the danger of allowing the government to manufacture crimes, and make new criminals of otherwise law abiding members of the public by dangling inducements to offenses they would otherwise not have contemplated committing. “‘Because entrapment is a judicially created doctrine [at least in federal court] , courts have been careful not to contravene congressional intent to punish those who commit the offense; that, in turn, requires that the doctrine take into account the practical problems faced by federal law enforcement…’ Therefore, the defendant must offer some evidence not merely of government inducement, but of improper government inducement.’” United States v. Diaz-Maldonado, 727 F.3d 130 (1st Cir. 2013), citing United States v. Teleguz, 492 F.3d 80, 84 (1st Cir. 2007). This dynamic tension between opposing antinomies has spun different tests used by different courts for the establishment of the defense. It further provides the creative attorney an energy dynamic that allows for crafting a potentially powerful defense for the client. It creates possibilities.

The Two Tests

“To determine whether entrapment has been established a line must be drawn between the trap for the unwary innocent and a trap for the unwary criminal.” Sherman v. United States, 356 U.S. 369 (1958). Federal and state courts have devised separate tests for establishing entrapment. These include “subjective” entrapment, and “objective” entrapment.

The subjective test, used in both federal court and Connecticut state court, focuses on the subjective state of mind of the defendant, and asks whether that individual was already predisposed to commit crime. “The subjective test of entrapment focuses on the disposition of the defendant to commit the crime of which he or she is accused. ‘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…. Where the Government has induced an individual to break the law and the defense of entrapment is at issue… the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.’ (Citations omitted.) Jacobson v. United States, U.S., 122 S.Ct. 1535, 1540, 118 L.Ed.2d 174 (1992). Thus, the subjective defense of entrapment succeeds only if the government, not the accused, is the source of the criminal design. The subjective defense fails if the accused is previously disposed to commit the crime, and the government merely facilitates or assists in the criminal scheme. Consequently, the subjective defense focuses attention on the disposition of the accused. ‘[I]f the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue.’ Sorrels v. United States, 287 U.S. 435, 451, 53 S.Ct. 210, 77 L.Ed.413 (1932).’” State v. Lee, 229 Conn. 60, 79 (1994).

“The majority of states have adopted the subjective standard for the entrapment defense, either by statute or case law. 1 W.LaFave & J. Israel, Criminal Procedure (1984) § 5.2, p. 416; see, e.g., Ruggs v. State, 601 So.2d 508 (Ala. Crim. App. 1992); State v. Williams, 464 So. 2d 1058 (La. App.), cert. denied, 468 So.2d 571 (La. 1985); State v. McGrillis, 376 A.2d 95 (Me. 1977); State v. Doran, 5 Ohio St. 3d 187, 449 N.E.2d 1295 (1983); State v. Saternus, 127 Wis.2d 460, 381 N.W.2d 290 (1986); Rivera v. State, 846 P.2d 1 (Wyo. 1993). Furthermore, the United States Supreme Court has adopted the subjective standard for the federal courts. See, e.g., Jacobson v. United States, supra, 112 S.Ct. 1535; Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, supra, 287 U.S. 435. State v. Lee, 229 Conn. 60, 79-80.

The objective test looks strictly at police conduct, asking whether the actions of the police would have lured the ordinary citizen to engage in a crime that they would not otherwise have contemplated to commit. Under the objective test, “‘guidance will generally be found in the application of one or both of two principles. First, if the [police conduct] would generate in a normally law-abiding person a motive for the crime other than ordinary criminal intent, entrapment will be established. An example of such conduct would be an appeal by the police that would induce such a person to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose. Second, affirmative police conduct that would make commission of the crime unusually attractive to a normal law-abiding person will likewise constitute entrapment. Such conduct would include , for example, a guarantee that the act is not illegal or the offense will go undetected, an offer of exorbitant consideration, or any similar enticement.’” Modern Criminal Procedure, 6th Ed., Kamisar, LaFave, and Israel, West Publishing, (1986), at page 486, citing People v. Barraza, 591 P.2d 947 (Cal. 1979). Under the objective test “the character of the suspect, his predisposition to commit the offense, and his subjective intent are irrelevant.” Id.

Under [the objective] standard, entrapment exists if the government conduct was such that a reasonable person would have been induced to commit the crime. This standard necessarily focuses attention on the conduct of the government. ‘The conduct with which the defense of entrapment is concerned is the manufacturing of crime by law enforcement officials anfd their agents…. For the Government cannot be permitted to instigate the commission of a criminal offense in order to prosecute someone for committing it.’ (Citation omitted; emphasis in original; internal quotation marks omitted.) United States v. Russell, supra, 411 U.S. 439 (Stewart, J., dissenting). ‘The crucial question… is whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power.’ Sherman v. United States, supra, 356 U.S. 382 (Frankfurter, J., concurring). Under an objective standard, the disposition of the accused to commit the crime is irrelevant. ‘To say that such conduct by an official of government is condoned and rendered innocuous by the fact that the defendant had a bad reputation or had previously transgressed is wholly to disregard the reason for refusing the processes of the court to consummate an abhorrent transaction.’ Sorrells v. United States, supra, 287 U.S. 459 (Roberts, J., concurring).” State v. Lee, 229 Conn. 60, 80 (1994).

States which have adopted the objective test include: Grossman v. State, 457 P.2d 226 (Alaska 1969); People v. Barraza, 23 Cal.3d 675, 591 P.2d 947, 153 Cal.Rptr. 459 (1979); State v. Anderson, 58 Haw. 479, 572 P.2d 159 (1977); State v. Cooper, 248 N.W.2d 908 (Iowa 1976); People v. Jamieson, 436 Mich. 61, 461 N.W.2d 884 (1990); Baca v. State, 106 N.M. 338, 742 P.2d 1043 (1987); State v. Pfister, 264 N.W.2d 694 (N.D. 1978); Commonwealth v. Jones, 242 Pa.Super. 303, 363 A.2d 1281 (1976); State v. Knight, 159 W.Va. 924, 230 S.E.2d 732 (1976). See State v. Lee, 229 Conn. 60, n.16 (1994).

Federal Court

“To raise an entrapment defense, the defendant must present evidence that he was: (1) induced to commit the crime by a government agent; and (2) not otherwise predisposed to commit the crime. Mathews v. United States, 485 U.S. 58, 62-63 (1988).” (Emphasis added). See Defending Federal Criminal Cases, “DFCC,” Federal Defenders of San Diego, Inc., Vol. I, Chapter 8 -Defenses Related To Government Conduct, (Coughlin, Richard; Van Hoeck, Lisa: McGrain, Julie; and Belsky, Thomas), § 8.03.01 Entrapment, p. 8-428 (2010 Edition).

This test represents “subjective” entrapment. “‘ [The federal defense] attempts to distinguish between persons who are blameworthy and persons who are not. In the absence of extraordinary circumstances, that should be the goal of our law of crimes.’” Modern Criminal Procedure, 6th Ed., Kamisar, LaFave, and Israel, West Publishing, (1986), at page 487, citing Park, The Entrapment Controversy, 60 Minn.L.Rev. 163, 270-271 (1976)..


“The most basic definition of inducement is ‘solicitation plus some overreaching or improper conduct on the part of the government.” Id., citing United States v. Hsu, 364 F.3d 192, 200 (4th Cir. 2004). It is “anything that materially alters the balance of risks and rewards bearing on the defendant’s decision whether to commit the offense, so as to increase the likelihood that he will engage in the particular criminal conduct.” Id. citing United States v. Poehlman, 217 F.3d 692, 702-03 (9th Cir. 2000). “Inducement may be defined as government conduct which creates a substantial risk that an undisposed person or otherwise law-abiding citizen would commit the offense.” Id. citing United States v. Ortiz, 804 F.2d 1161, 1165 (10th Cir. 1986).

“Examples of such ‘government overreaching’ include ‘intimidation, threats, dogged insistence,’ or ‘excessive pressure’ directed at the target of an investigation by a government agent.” United States v. Diaz-Maldonado, 727 F.3d 130 (2013), citing United States v. Vasco, 564 F.3d 12, 18 (1st Cir. 2009). It is important to keep in mind, that mere “[s]olicitation, or the creation of an opportunity to engage in criminal conduct, alone is not sufficient to establish inducement.” DFCC, at p. 8-428, citing Hsu, 364 F.3d at 199, and United States v. Pratt, 913 F.2d 982, 989 (1st Cir. 1990).


“’Predisposition’ is defined generally as ‘a defendant’s inclination to engage in the illegal activity for which he has been charged, i.e., that he is ready and willing to commit the crime.” DFCC, p. 8-439, citing United States v. LaRizza, 72 F.3d 775, 778 (9th Cir. 1995), and United States v. Ortiz, 804 F.2d 1161, 1165 (10th Cir. 1986). “In other words, Willie Sutton likely could not have beaton a bank robbery charge with an entrapment defense, even if the conduct of the government were such as to cause a person not otherwise predisposed to commit the crime to do so.” United States v. Diaz-Maldonado, 727 F.3d 130 (2013), citing United States v. Acosta, 67 F.3d 334, 337-38 (1st Cir. 1995). It is significant, that “[p]redisposition is not limited to crimes specifically contemplated by the defendant, but also encompasses decisions to commit crimes that are the product of the defendant’s own preference and not the product of government persuasion.” Id. citing United States v. Ramos, 462 F.3d 329, 334-35 (4th Cir. 2006).

“To assist fact-finders in assessing predisposition, many circuits have adopted a multi-factor test. The Second Circuit uses a three-factor test which provides that “[p]redisposition may be shown by evidence of: (1) an existing course of criminal conduct similar to the crime for which [the defendant] is charged; (2) an already formed design on the part of the accused to commit the crime for which he is charged; or (3) a willingness to commit the crime for which he is charged as evidenced by the accused’s ready response to the inducement.” Id. citing United States v. Salerno, 66 F.3d 544, 547 (2nd Cir. 1995).

It is interesting to compare other tests used to establish predisposition employed by other circuits. “[T]he First, Third, Sixth, Seventh, and Ninth, employ a five factor predisposition test which directs the fact-finder to consider: (1) the character or reputation of the defendant; (2) whether the government made the initial suggestion of criminal activity; (3) whether the defendant engaged in the activity for profit; (4) whether the defendant showed any reluctance; and (5) the nature of the government’s inducement.” Id. citing United States v. Gamache, 156 F.3d 1, 9-10 (1st Cir. 1998); United States v. Wright, 921 F.2d 42, 45 (3rd Cir. 1990); United States v. Barger, 931 F.2d 359, 366 (6th Cir. 1991); United States v. Blassingame, 197 F.3d 271, 281 (7th Cir. 1999); United States v. Gurolla, 333 F.3d 944, 955 n(9th Cir. 2003).

Evidentiary Burdens:

The Burden of Production

In the First Circuit, “[t]he defendant has the initial burden of production as to both elements of [the] two-part test, ‘measured by the time-honored sufficiency-of-the-evidence yardstick….’” United States v. Diaz-Maldonado, 727 F.3d 130 (2013), citing United States v. Rodriguez, 858 F.2d 809, 813-14 (1st Cir. 1988). [G]iven the need to avoid having criminal trials turn into diversionary examinations of ‘long-permitted operations of law enforcement,’ defendants may present the defense only after satisfying their ‘entry-level burden’ of production…” Diaz-Maldonado, 727 F.3d 130 (2013), citing United States v. DePierre, 599 F.3d 25, 27-28 (1st Cir. 2010), aff’d, 131 S.Ct. 2225 (2011), United States v. Coady, 809 F.2d 119, 122 (1ST Cir. 1987), and United States v. Rodriguez, 858 F.2d 809, 812 (1st Cir. 1988).

It is important to note, that without first satisfying this initial burden of production, a defendant will not be allowed to argue, and will not receive a jury instruction on, the defense of entrapment.

The Burden of Proof

“Then, if ‘the defense is properly in the case, the government is obligated to prove beyond a reasonable doubt that no entrapment occurred.” Id. citing Rodriguez at 815.

State Court-Connecticut

Connecticut has likewise adopted “subjective” entrapment. The Connecticut Supreme Court first approved of the defense as a judicially created defense in State v. Marquardt, 139 Conn. 1 (1952). In 1971, the legislature codified the concept:

In any prosecution for an offense, it shall be a defense that the defendant engaged in the proscribed conduct because he was induced to do so by a public servant, or by a person acting in cooperation with a public servant, for the purpose of institution of criminal prosecution against the defendant, and that the defendant did not contemplate and would not otherwise have engaged in such conduct. C.G.S.A. § 53a-15.

“Entrapment is inconsistent with guilt in a criminal case and if it existed entitles the defendant to an acquittal. State v. Marquardt, 139 Conn. 1, 4, 89 A.2d 219. Although entrapment is generally referred to as a defense, it is more properly treated as a fact inconsistent with guilt. Therefore, as soon as substantial evidence of entrapment comes into the case, the burden of proving the essential elements of the crime charged, which rests throughout upon the state, necessarily includes the negation of the issue of entrapment, in the same way as if substantial evidence of insanity had come into the case. See Kadis v. United States, 373 F.2d 370, 373 (1st Cir.); State v. Joseph, 96 Conn. 637, 639, 115 A. 85.” State v. Whitney, 157 Conn. 133, 135 (1968).

It should be observed, that once a defendant raises entrapment “by introducing (or pointing to) evidence which would justify that defense, the burden remains on the state to disprove it beyond a reasonable doubt.” Connecticut Practice, Connecticut Criminal Jury Instructions, Third Edition, West Publishing, (2001),Vol. 5, § 6.4, at p. 501. In State v. Lee, the Court explained that “the defendant has the initial responsibility to present sufficient evidence that the state induced him or her to commit the offense charged. Once that burden has been met, however, the burden shifts to the state to prove beyond a reasonable doubt that the defendant was predisposed to commit the offense.” 229 Conn. 60 (1994) (citations omitted).

The elements of the entrapment defense in Connecticut largely mirror those in federal criminal proceedings. As explained in the Connecticut pattern jury instruction:

If the intent to commit the crime, or a willingness to commit it, originated in the defendant’s mind, and he commits the crime, it is not a defense that the police gave him the opportunity to commit it or aided him in committing it in order to obtain the evidence necessary to prosecute him. Along these same lines, the mere fact of deceit by the police does not defeat the prosecution. It is only if that deceit actually implants the criminal intent in the defendant’s mind that the defense of entrapment applies…..

On the other hand, if the intent that the crime be committed originated solely in the mind of the police officer, and the officer lured the defendant into committing the crime in order to prosecute him for it, and the defendant would not have committed a crime of that general character without the urging of the police, such entrapment is a defense to the crime charged. In other words, there are three basic elements for the defense of entrapment: (1) the criminal intent originated solely in the mind of the police officer; (2) the officer lured the defendant into committing this particular crime; and (3) the defendant would not have committed a crime of that general character without the urging of the officer. Id. at pgs. 502-503.

“The defendant’s right as a matter of law to a theory of defense instruction exists… only when there is evidence adduced indicating the availability of the defense. ‘The court… has a duty not to submit to the jury, in its charge, any issue upon which the evidence would not reasonably support a finding.” Golodner 46 A.3d at 85, citing State v. Diggs, 219 Conn. 295, 299 (1991), and State v. Williams, 202 Conn. 349, 364 (1987). It is important to note, that “a defendant is ‘entitled to have [jury] instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible….United States v. Platt, 435 F.2d 789, 792 (2nd Cir. 1970), quoting United States v. O’Connor, 237 F.2d 466, 474 n. 8 (2nd Cir. 1956).’ United States v. Alfonso-Perez, 535 F.2d 1362, 1365 (2nd. Cir. 1976).” State v. Golodner, 305 Conn. 330, 46 A.3d 71, 86 (2012) (emphasis added).

It should be noted, that the Connecticut Supreme Court has held that the defendant must admit the commission of the crime in order to be entitled to a jury charge on entrapment. State v. Avery, 152 Conn. 582 584 (1965). See also State v. Golodner, 305 Conn. 330, 46 A.3d 71, 85 (2012), citing State v. Grant, 8 Conn.App. 158, 164 (1986), State v. Hawkins, 173 Conn. 431, 435-37 (1977), and State v. McNally, 173 Conn. 197, 200-203 (1977). “‘When a defendant admits the commission of the crime charged but seeks to excuse or justify its commission so that legal responsibility for the act is avoided, a theory of defense charge is appropriate…’ State v. Rosado, 178 Conn. 704, 707, 425 A.2d 108 (1979).” Golodner 46 A.3d at 86.

Other State Courts- New Mexico

New Mexico has an interesting paradigm. It recognizes the availability of both subjective and objective entrapment, further recognizing two branches of “objective” entrapment. State v. Vallejos, 945 P.2d 957, 960 (1997). Mew Mexico’s Supreme Court further recognizes that entrapment, be it subjective or objective “involves matters of due process under Article II, Section 18 of the New Mexico Constitution.” Id. at 958. Objective entrapment is based either on: (1) police conduct that would induce an ordinary citizen into committing a crime that they would otherwise be indisposed to commit; and (2) police conduct that goes beyond, or exceeds, the standards of proper police investigation. The significance of the distinction between the two branches of objective entrapment under New Mexico law is the division of labor between the court and the jury at trial.

With respect to inducement of the ordinary citizen, the issue is left as a factual determination for the jury. 945 P.2d at 961. “The jury’s task is to answer a purely factual, hypothetical, objective question. While this factual inquiry has been formulated in a variety of ways, the focus of the jury’s attention in this inquiry is on the likely effect of police conduct on a hypothetical person not predisposed to commit the crime.” 945 P.2d at 961, (citations omitted). “In this factual inquiry, the defendant’s predisposition plays no role whatsoever—this is the principle difference between this defense and the subjective entrapment defense.” Id. “The principal reason we recognized the objective defense was to provide an adequate remedy where the police acted improperly but the defendant was predisposed. If police create a substantial risk that an ordinary person would have committed the crime, then due process [under the New Mexico constitution] is violated regardless of the defendant’s predisposition to commit the crime.” Id. (Citations omitted). “The factual inquiry is conducted primarily by the jury. However, if the trial court finds that police conduct created a substantial risk that a person not predisposed to commit the crime would have been induced to commit it and that no reasonable jury could find otherwise, then a directed verdict for the defendant is proper.” Id.

With respect to conduct that goes beyond acceptable police standards, however, a defendant may ask the court to rule independent of the jury on the issue of normative police practices, seeking the dismissal of the case based on police conduct that violates acceptable standards of proper investigation by police. 945 P.2d at 962. “Under the normative inquiry, the trial court carefully scrutinizes both the methods and purposes of police conduct to determine whether police tactics ‘offend our notions of fundamental fairness, see, e.g. [ State v. Sheetz, 113 N.M. 324 (Ct.App. 1991)], at 329, 825 P.2d at 619, violates principles of fair and honorable administration of justice, see, e.g., State v. Sainz, 84 N.M. 259 (1972)], at 261, 501 P.2d at 1249, or shocks the conscience, see, e.g., Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952). State v. Vallejos, 945 P.2d at 962.

Constitutional Issues

In State v. Vallejos, 945 P.2d 957, 958 (1997), the New Mexico Supreme Court held “that entrapment, whether subjective or objective, involves matters of due process under Article II, Section 18 of the New Mexico Constitution.” Citing Michigan v. Long, 463 U.S. 1032, 1041 (1983), the Court in Vallejos recognized “that this decision is based solely on state constitutional grounds.” 945 P.2d 957, at n. 2.

“Other states have explicitly recognized constitutional due process limitations of entrapment. See Munoz v. State, 629 So.2d 90, 98-99 (Fla. 1993)(recognizing that ‘egregious law enforcement conduct’ should be evaluated under article I, section 9 of the Florida Constitution); Johnson, 606 A.2d at 320-22 (‘explicitly’ founding the entrapment defense as a matter of due process on article I, paragraph 2 of the New Jersey Constitution); Houston, 475 S.E.2d at 319 (recognizing that ‘egregious and reprehensible ‘ government conduct violates notions of fundamental fairness mandated by ‘article three, section ten of the West Virginia Constitution’); Isaacson, 406 N.Y.S.2d 714, 378 N.E.2d at 82 (recognizing that article I, section 6of the New York Constitution sets due process ‘boundaries of permissible police conduct’).

“The due process underpinnings of entrapment have also been recognized in the federal courts. In Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), Justice Frankfurter wrote that ‘[t]he power of government is abused and directed to an end for which it was not constituted when employed to promote rather than detect crime and to bring about the downfall of those who, left to themselves, might well have obeyed the law.” Id. at 384, 78 S.Ct. at 826 (Frankfurter, J., concurring).” State v. Vallejos, 945 P.2d 957 at 965.

In Connecticut, the Court was invited to recognize the principle of objective entrapment where “police conduct exceeded the bounds of proper investigation,” in addition to statutory subjective entrapment. State v. Lee, 229 Conn. 60, 82 (1994). It declined to do so. The appellant in Lee argued that the Court had the ability to recognize the additional defense of objective entrapment based on the “saving clause of General Statutes §53a-4,” and its “inherent power to protect its own processes.” Lee at 82. Further, the appellant in Lee “claim[ed] that the due process clause of the Connecticut constitution provides the requisite authority” to recognize objective entrapment. Because the appellant failed to provide analysis of the constitutional nature of the claim, it declined “to undertake a state constitutional inquiry.” Lee at n. 18 (citation omitted). The door, however, has been left open to make such a state constitutional argument.

While entrapment has not been recognized as a due process defense in Connecticut, the fact that subjective due process is available to a defendant, the righto raise subjective entrapment once the requisite quantum of proof has been adduces at trial has constitutional dimensions. “‘A fundamental element of due process is the right of a defendant charged with a crime to establish a defense. Washington v. Texas, [388 U.S. 14, 19 (1967)]; State v. Bethea, 167 Conn. 80, 83, 355 A.2d 6 (1974).’ State v. Miller, 186 Conn. 654, 660, 443 A.2d 906 (1982). Where the legislature has created a legally recognized defense, in this case entrapment, this fundamental constitutional right includes a proper jury instruction on the elements of the defense of entrapment so that the jury may ascertain whether the state has met its burden of disproving it beyond a reasonable doubt. See id., at 660-61, 443 A.2d 906; State v. Fuller, [199 Conn. 273, 280 (1986)].” State v. Golodner, 305 Conn. 330, 46 A.3d 71, 86 (2012) (emphasis added).

Some Examples

In order to evaluate a specific fact pattern to determine if the client may have a viable entrapment defense it is helpful to look to case law where courts have found improper inducement. Of course, the problem with finding successful examples of entrapment defense is that the defendant was acquitted and there is usually no judicial opinion document the facts of the matter.

In the Vallejos case, the New Mexico Supreme Court took time to survey court decisions with respect to examples of unconscionable police practices. These cases provide examples of improper inducement:

  • ‘[giving defendant] free heroin until he [is] addicted and then play[ing] on [his] addiction to persuade [him] to purchase heroin and cocaine for an undercover police agent,’ State v. Sheetz, 113 N.M. 324, 328-29 (Ct.App. 1991);
  • ‘an extreme plea of desperate illness,’ Grossman v. State, 457 P.2d 226, 230 (Alaska 1969);
  • ‘an appeal based primarily on sympathy or friendship,’ Holloway, People v. Holloway, 47 Cal.App.4th 1757, 55 Cal.Rptr.2d 547, 550 (1996); Wayne R. LaFave &Austin W. Scott, Jr., Substantive Criminal Law § 5.2, 602 (1986);
  • ‘an offer of inordinate gain or a promise of excessive profit,’ Grossman, 457 P.2d at 230;
  • ‘persistent solicitation to overcome a defendant’s demonstrated hesitancy,’ People v. Isaacson, 44 N.Y.2d 511, 406 N.Y.S.2d 714, 718, 378 N.E.2d 78, 83 (1978);
  • ‘the use of brutality or physical or psychological coercion to induce the commission of a crime,’ State v. Lively, 130 Wn.2d 1, 921 P.2d 1035, 1045 (1996);
  • ‘an offer to sell drugs to one in a drug rehabilitation program,’ Commonwealth v. Lucci, 443 Pa.Super. 431, 662 A. 2d 1, 7 (1995)

Vallejos, 945 P.2d at 963. This list is certainly not exhaustive, but certainly suggests the level of “encouragement” that might qualify as “inducement.”

The Problem

The problem for most criminal defense lawyers in raising the defense focuses on the predisposition of the client. In jurisdictions subscribing to the subjective test it is not enough to show improper inducement. This doesn’t seem quite fair considering that there exists considerable danger in allowing the police to go to the extreme of creating crime by employing improper inducements. That is, regardless of a particular defendant’s disposition to commit a crime, do we really want government agents employing deceptions at a level where the average citizen would get caught in a trap not of his own making? So often in the criminal justice system, defense lawyers are found representing repeat offenders. It can be difficult in some circumstances to argue that the client was not predisposed to commit the crime, even where the government’s inducement is so egregious as to question the legitimacy of the police practice. By not allowing the defense where the defendant has predisposition, the courts are potentially encouraging the continuation and intensification of abusive police practices.

Creative Possibilities

In State v. Lee, 229 Conn. 60 (1994), the Connecticut Supreme Court rejected a judicially created objective entrapment test to be used in addition to the statutorily created subjective test.

That may not be the end of the issue. First, the Court declined to examine the question as to whether as a matter of due process under the Connecticut constitution it should recognize objective entrapment as a matter of fundamental fairness. Second, the lee case is now more than twenty years old, and the Connecticut Supreme has recently demonstrated a willingness to exercise its inherent rule making authority in criminal cases. There were two dissenters in Lee who were open to the employment of the objective test for policy reasons. Under the right facts, counsel may be able to convince the Court to reconsider the objective test. Third, there may be an interesting separation of powers question regarding the Court being limited to the statutory subjective test. The Court in Lee reasoned that a judicially created objective test would undermine the legislatively created subjective test. But if the judiciary has an independent obligation to ensure fundamental fairness in criminal prosecutions, doesn’t that weigh heavily in favor of having a judicially created test on the issue? Worth a try.

Lurking Dangers

“Since the issue of entrapment raises questions as to the defendant’s state of mind, evidence may be adduced by either side tending to show that state of mind. Sherman v. United States, supra, 373; note, 33 A.L.R.2d 883, 908 § 6; 22A C.J.S., Criminal Law, § 618 n.66; DeFeo, op cit., p. 263. Thus, the state may introduce evidence as to an existing course of similar criminal conduct on the part of the defendant, his already formed design to commit crimes of the general nature of that which he is charged, or his unwillingness to commit the crime as shown by his ready acquiescence in its commission. United States v. Becker, 62 F.2d 1007, 1008 (2d Cir.); note, 33 A.L.R.2d 883, 886 § 3, and cases cited, 908 § 6.” State v. Whitney, 157 Conn. 133, 137 (1968).

So beware the lurking dangers:

  • Admission of prior bad acts evidence and otherwise inadmissible character evidence
  • Requisite admission by defendant that the crime was committed (at least in Connecticut)
  • Confusing Jury instruction


Establishing a winning entrapment defense is difficult. It is difficult to satisfy the initial burden of production to even be able to argue entrapment before the jury and receive an entrapment instruction. “In twenty-two prior appeals to this circuit challenging a trial court’s refusal to give a jury instruction on entrapment, we have overruled the refusal only three times.” Diaz-Maldonado, 727 F.3d 130 (2013), citing United States v. Gamache, 156 F.3d 1, 12 (1st Cir. 1998)(plenary), United States v. Joost, 92 F.3d 7, 14 (1st Cir. 1996)(plenary), and United States v. Rodriguez, 858 F.2d 809, 815-16 (1st Cir. 1988)(plenary).

But difficult doesn’t mean impossible, and you should both keep your eye on the possible successful use of the defense. Just be on guard that you don’t open the proverbial Pandora’s box of problems in attempting to establish entrapment. Be open to the creative possibilities, but watch out!

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