§ 27.02 ENTRAPMENT: THE SUBJECTIVE TEST

• Jurisdiction: United States

§ 27.02. Entrapment: The Subjective Test

[A] Rule

[1] In General

The Supreme Court recognized a federal court defense of entrapment for the first time in 1932 in Sorrells v. United States,³ when Chief Justice Charles Evans Hughes, speaking for five members of the Court, allowed an entrapment defense based on what has come to be termed the "subjective" test of entrapment. The Court reaffirmed its support for the subjective version of the defense in Sherman v. United States⁴ and United States v. Russell.⁵

As the Court has explained the subjective test, "[a]rtifice and stratagem may be employed to catch" criminals,⁶ but a "different question is presented 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."⁷ In short, the Supreme Court distinguishes between the trap set for the "unwary criminal" (which is permitted) and for the "unwary innocent" (which is not).⁸ Under the subjective test, entrapment is proved if a government agent induces an "innocent" person—a person not predisposed to commit the type of offense charged—to violate the law, so that she can be prosecuted.

[2] Proving Predisposition⁹

In the typical "subjective entrapment" prosecution, the critical issue is whether the defendant was predisposed to commit the offense charged. If she was not predisposed and yet committed the offense after contact with government agents, this is a matter of concern to the courts. As the Supreme Court explained in Jacobson v. United States,¹⁰ "[w]hen the Government's quest for convictions leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should intervene."

Notwithstanding the preceding language in Jacobson and similar statements in other opinions, it is not the case that only an entirely law-abiding person can prevail with a claim of entrapment, although such a person provides the most attractive case.¹¹ It is enough that the defendant was not predisposed to commit the type of offense for which she was prosecuted at the time the government first approached her. A life-long pickpocket, for example, is predisposed to commit minor larcenous acts, but is not by that fact alone disposed to commit, for example, drug offenses or murder. As to these latter offenses, she is a "non-predisposed" individual.

Predisposition may be proved at trial in various ways. First, the facts of the incident itself may demonstrate the defendant's "ready complaisance"¹² to commit the crime. For example, the prosecutor may point to the defendant's quick willingness to commit the offense, her ready knowledge of how to commit the crime, or her comments leading up to the offense that demonstrate her propensity to commit the crime.

Second, predisposition may be proved by reference to the defendant's character in the community prior to the time the government approached her. This is done by the prosecutor introducing evidence, in most other circumstances inadmissible at trial, of the defendant's bad reputation in the community and/or her prior criminal record, including arrests and convictions for related offenses.¹³

An example of predisposition is seen in United States v. Russell.¹⁴ In Russell, an undercover federal agent met R, who was illegally manufacturing amphetamines, and stated that he represented an organization interested in controlling the manufacture and distribution of the drugs in the Pacific Northwest. The agent offered to supply R with a difficult-to-obtain chemical that was necessary in the production of the drug. R readily agreed to the arrangement. The Court held that entrapment was not proved, in view of R's predisposition to commit drug offenses of the sort for which he was prosecuted.

Examples of non-predisposed persons are the defendants in Sorrells v. United States,¹⁵ Sherman v. United States,¹⁶ and Jacobson v. United States.¹⁷ In Sorrells, S was prosecuted for violation of the National Prohibition Act after he sold a one-half gallon jug of whiskey to a government agent who posed as a tourist. S sold him the liquor, but only after three entreaties by the agent, who had befriended him by claiming to be a former member of the World War I military division in which S had served. The Court stated that S "had no previous disposition to commit [the criminal act] but was an industrious, law-abiding citizen . . . lured [by the agent] . . . to its commission by repeated and persistent solicitation . . ."

In Sherman, a government informer met S at a doctor's office where both men were being treated for narcotics addiction. After befriending S, the informer asked him if he knew of a good source...