A defendant can use an affirmative defense to prove that, while he committed a crime, he cannot be held criminally liable for it. An affirmative defense is a legal justification that excuses the defendant from punishment.
Entrapment is an affirmative defense. Entrapment occurs when a defendant had no intention of committing a crime but was coerced into doing so by a member of a law enforcement or government agency. The law requires the defendant and his legal counsel to provide evidence according to one of two standards to prove entrapment.
Subjective v. objective standards
U.S. federal courts and the majority of state courts employ the subjective test to determine whether entrapment has taken place.
This test focuses more on the defendant’s actions, state of mind, or motivations; and whether she was already predisposed to commit the crime regardless of the police officer’s actions. For a defendant to prove entrapment under the subjective test, the defendant must show that the law enforcement agent forced her to commit a crime she would not have committed without the agent’s inducements.
The handful of states that use the objective test focuses more on the level of inducement that the police officer applied to the defendant. Instead of providing evidence on their motivations and state of mind, defendants must provide evidence that shows that the law enforcement agent’s conduct would have forced even a normally law-abiding person to commit a crime.
The defendant is a heroin user with no previous history of dealing drugs. An undercover police officer tries to buy heroin from her. The defendant refuses. The police officer calls and visits the defendant daily for weeks to convince her to sell. Eventually, the officer threatens to report the defendant if she refuses to sell him drugs. After a week, the defendant breaks down and sells the cop heroin.
This scenario can be considered entrapment under both the subjective and objective standards:
Subjective: The defendant had no prior history of selling drugs and had no predisposition to do so.
Objective: The undercover police officer used an excessive level of inducement, using threats and blackmail, to force the defendant to commit the crime.
Proving entrapment can be extremely difficult as defendants have to prove entrapment by a preponderance of evidence while showing they were not predisposed to commit the crime.