In A Nutshell
One of the most enduring misconceptions, often perpetuated by stereotypical crime dramas, is that if you ask an undercover agent if they are a police officer they must to tell you the truth or else become guilty of entrapment. Unfortunately, this is completely untrue. For something to qualify as entrapment, it has to be a situation where you were tricked into doing something you normally wouldn’t.
The Whole Bushel
A legend that has been passed around for a long time says that a prostitute can always protect themselves legally by asking everyone if they are a cop. The idea is that if the cop says “yes,” then obviously the prostitute has saved herself with her savvy; if the cop says “no,” then the prostitute can use the entrapment defense. However, unfortunately for the prostitute, she is probably not going to get that conviction overturned, at least not on those grounds. You see, a cop doesn’t have to tell you the truth at all or there would be no point in any agent ever going undercover. All any gangs would have to do is ask everyone if they are a cop and they would be golden. The truth is that cops have to perform sting operations all the time and lying is just another part of the job.
The entrapment defense, on the other hand, presents quite a few different issues. Now, our hypothetical prostitute might decide to hire a lawyer and attempt such, but a reasonable lawyer probably would advise her against it. Popular culture has confused people deeply about what entrapment is, but the main idea is that you are induced to commit a crime you wouldn’t normally commit. This means that even if the cop approached the prostitute she can’t use the entrapment defense if she is predisposed to committing such crimes.
In the United States, entrapment is decided by two main factors. The first is that the person is not predisposed to committing that kind of crime, and the second is that the cop actually induced the person to commit the crime. Perhaps the prostitute in our story didn’t even want to, but she needed the money and was constantly badgered by the undercover officer before she gave in. For her, the entrapment defense might work. However, even if the cop badgered her for a while before she agreed, if it can be proven that she works as a prostitute on a regular basis, the entrapment defense probably wouldn’t hold water because she is “predisposed” to committing similar crimes.
Of course, this is not entirely uniform. Sometimes you will find a court that rules more based on the officers behavior during the sting operation and not so much on the defendant’s predisposition, but it’s not particularly common. To make things worse for defendants, entrapment is likely to be very difficult to prove. The fact of the matter is that if you are using entrapment as a defense, you are basically accusing an officer of misconduct and the maxim of the law is innocent until proven guilty. If you can manage to convince the court that you were pushed into committing the crime, then and only then is the burden of proof on the other side to prove that you were likely to perform such an act regardless. Also, it is rather important to note that entrapment defenses generally don’t work at all in cases of violent crime, no matter what the inducement involved.
Show Me The Proof
National Paralegal College: Entrapment
Snopes: Are You A Cop?
