Sometimes undercover police or police informants embed themselves into criminal conduct that is already happening in order to investigate and make arrests. These are often part of a “sting” operation. But when police go further and actually create the crime to begin with, the other participants might not be criminally liable at all.
This is where “entrapment” comes in as a defense to say that the defendant had no intent to commit a crime, and it was the police who actually pushed them into it. In many cases, entrapment defenses are quite narrow. However, Pennsylvania actually has an entrapment law that can help guide application of this defense.
For help with a possible entrapment defense, call Kenny, Burns & McGill’s Philadelphia criminal defense lawyers at (215) 423-5500.
What is Entrapment?
Police usually come upon criminal activity while it is in the planning stages, while the crime is happening, or after it happened. However, when police come upon a crime before it is even planned, and they make that crime happen, it might be entrapment.
Definition
Entrapment is a defense where the defendant says they had no criminal intent, and they only committed a crime because the police actually induced them to do it.
Elements
Typically, you have to show these things happened for an entrapment defense to work:
- You had no prior intent to commit the crime
- The police/government coerced you into committing the crime.
Under Pennsylvania law, this coercion must have occurred through government officials, law enforcement, or someone working with law enforcement doing at least one of these acts:
- Knowingly lying to you to make you believe the act was not illegal
- Using methods with a “substantial risk that” the crime “will be committed by” someone who was not ready to commit the crime.
Pennsylvania Law
Pennsylvania has a statute on the books to define how the entrapment defense works under 18 Pa. C.S. § 313. This law does four things:
- It defines entrapment.
- It gives two types of conduct the government has to have done to qualify as entrapment (lies or coercion).
- It puts the burden of proof on the defendant to prove entrapment by a preponderance of the evidence.
- It blocks the entrapment defense for crimes of violence/threats against people other than the officer/“person perpetuating the entrapment.”
Entrapment as an Affirmative Defense
Entrapment is a type of “affirmative defense.” That essentially means you have to admit to the alleged conduct to use an entrapment defense; you only deny the intent portion.
For example, if you are accused of growing marijuana plants, you have to admit that you did grow and possess illegal drugs, but you only did so because the police coerced you into it. This usually means putting your whole case behind this one defense.
Burden of Proof in Entrapment Defenses in Pennsylvania
In an entrapment case, the burden of proof for proving entrapment rests with the defendant. This means that it is up to our Bucks County, PA criminal defense lawyers to prove that you were entrapped.
The burden of proof used is the “preponderance of the evidence” standard, which means we have to show it is “more likely than not” that you were entrapped. This is a lower burden than the “beyond a reasonable doubt” burden the prosecution has to prove you committed the crime and had the requisite intent.
How Are Sting Operations Supposed to Work
In typical sting operations, police do the following:
- Pose as customers for illegal goods, e.g., through “controlled buys” of drugs
- Help supply people who already intend to commit a crime with the means to carry it out
- Send confidential informants to do the same.
Police are not supposed to come up with the crime, find someone who has no intent to commit it, then give them what they need to commit a crime.
Problems with Entrapment Claims
Defenses for entrapment are difficult to use for a few reasons:
Narrow Applicability
A lot of cases that are charged fall into the normal procedures for a “sting operation” and do not involve entrapment. Entrapment only applies in a few narrow situations and is quite rare.
You should always have a lawyer determine whether it applies to your case or not instead of assuming your entrapment defense would lose.
“Predisposition” to Crime
In the 1958 Supreme Court case Sherman v. U.S., the Court held that it was entrapment when the police inspired a former drug addict to sell drugs after he repeatedly told them no. Here, they said the police created the intent, and the fact that the defendant was a drug user was not a predisposition to crime.
Contrast this with the 1976 case, Hampton v. U.S., where a man’s plan to sell fake heroin led to narcotics officers giving him real heroin and convincing him to sell it. There, the Court said he was predisposed to this kind of criminal activity, so even though the police supplied him with the drugs he otherwise would not have been able to access (let alone sell), it wasn’t entrapment.
Risky Defense
To claim entrapment, you essentially have to admit that the facts are true to claim entrapment. This makes it hard to challenge the case on other grounds, such as mistaken identity. Putting all your eggs in the entrapment defense basket can be a risky move.
Not Allowed in Violent Crimes
If you injured or threatened someone other than the officer entrapping you, entrapment is not available as a defense in Pennsylvania. This means it does not work for things like robbery or assault.
FAQs for Entrapment Defenses in Philadelphia
When Does the Entrapment Defense Apply?
In Pennsylvania, you can use entrapment as a defense if either of these things happened:
- You committed a crime because a cop/government official lied to you and told you it was not illegal.
- An officer or informant pushed you into committing a crime you otherwise wouldn’t have committed.
Does Entrapment Apply Only to Drug Crimes?
While “controlled buys” and other undercover sting operations usually focus on drug crimes, entrapment can apply to a much wider range of crimes.
However, in Pennsylvania, the defense is not allowed in violent crimes.
Call Our Philadelphia Criminal Defense Lawyers Today
For your free case review, call Kenny, Burns & McGill’s Montgomery County, PA criminal defense lawyers at (215) 423-5500.
