§ 27.01 ENTRAPMENT: IN GENERAL

• Jurisdiction: North Carolina

§ 27.01. Entrapment: In General¹

Entrapment is a criminal law defense. That is, like defenses such as insanity, duress, and self-defense, entrapment is pleaded by the defendant, and if the claim is adequately proved, she is acquitted. In short, a finding of entrapment does more than result in exclusion of evidence at trial —i t bars the successful prosecution of the defendant.

Entrapment is not a constitutional doctrine. A police officer who entraps a citizen does not, by that fact alone, violate the Constitution. As a consequence, no jurisdiction is required to recognize the defense, although all of the states and the federal courts currently allow the claim;² and the definition of the defense and the procedural rules relating to it can and do vary by jurisdiction.

In general, there are two divergent approaches to the defense, frequently termed the "subjective" and "objective" tests of entrapment. Although the definition of entrapment depends on which test is used, both versions usually require proof that: (1) the defendant was induced to commit the crime by a government agent (typically, an undercover police officer); (2) the defendant or, at least, a hypothetical, average person, would not have committed the offense but for the inducement; and (3) the government agent acted as she did in order to obtain evidence to prosecute the defendant.

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Notes:

^[1] See generally Ronald J. Allen et al., Clarifying Entrapment, 89 J. Crim. L. & Criminology 407 (1999); Jonathan C. Carlson, The Act Requirement and the Foundations of the Entrapment Defense, 73 Va. L. Rev. 1011 (1987); Joseph A. Colquitt, Rethinking Entrapment, 41 Am. Crim. L. Rev. 1389 (2004)...