§ 11.07 Entrapment Cases

• Jurisdiction: United States

§ 11.07 Entrapment Cases

A majority of jurisdictions follow the "origin of intent" test or subjective theory of entrapment.⁶³ Under this test, entrapment occurs "when the criminal design originates with the officials of the government, and 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."⁶⁴ Under this view, the defendant's predisposition (propensity) is a material issue, and the defendant's prior criminal conduct becomes relevant. As the Supreme Court has stated, "If 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. If in consequence he suffers a disadvantage, he has brought it upon himself by reason of the nature of the defense."⁶⁵

Although an entrapment defense raises issues concerning the defendant's character and commission of other acts, the theory of the admissibility is unclear. The use of disposition evidence in the entrapment context could be construed as raising an issue of (1) other-acts evidence under Rule 404(b), (2) "character in issue," or (3) prosecution rebuttal to a defendant's "opening the door" to character under Rule 404(a)(1).⁶⁶

Nevertheless, this evidence rule has been characterized as the "greatest fault" of the subjective approach to the entrapment defense and an "indiscriminate attitude toward predisposition evidence is by no means a necessary feature of the subjective test."⁶⁷Here, again, Rule 403 should preclude a blunderbuss approach.⁶⁸

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Notes:

^[63] See Dressler & Michaels, Understanding Criminal Procedure ch. 28 (4th ed. 2006).

^[64] Sorrells v. United States, 287 U.S. 435, 442 (1932) (emphasis added).

^[65] Id. at 451-52. See also United States v. Mendoza-Prado, 314 F.3d 1099, 1103-04 (9th Cir. 2002) ("Generally, evidence of character, or of prior bad acts, is inadmissible when used to prove a defendant's propensity to commit the crime in question. Fed.R.Evid. 404. When the defendant raises an entrapment defense, however, such evidence becomes relevant.").

^[66] See supra § 10.09 (discussing character as an element of a defense); § 10.04[C] (prosecution rebuttal).

^[67] Park, The Entrapment Controversy, 60 Minn. L. Rev. 163, 272 (1976).

^[68] See United States v. Franco, 484 F.3d 347, 353 (6th Cir. 2007) ("[T]he probative value of this evidence—which the government used to rebut Franco's...