The Entrapment Defense in Colorado
| Publication year | 2011 |
| Pages | 47 |
2011, January, Pg. 47. The Entrapment Defense in Colorado
January 2011
Vol. 40, No. 1 [Page 47]
Criminal Law articles are sponsoredby the CBA Criminal Law Section and generally are writtenby prosecutors, defense lawyers, and judges to provide information about case law; legislation; and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
Coordinating Editor
Morris Hoffman, Judge for the Second Judicial District Court, Denver
About the Author
Ann M. Roan has been a Colorado State Public Defender since 1990. After practicing in trial offices across the state and in the Appellate Division, she became the State Training Director in 2004-ann.roan@coloradodefenders.us.
The defense of entrapment, which centers on the notion that the police should not be able to both create and prosecute a criminal act, can be very persuasive to juries. This article explores issues relating to the interpretation of entrapmentby Colorado courts, suggestions for pretrial preparation, and jury instructions for use in entrapment cases.
Entrapment is a defense that many criminal defense lawyers are wary of using. It is risky, because-like other justification defenses-it is a functional admission that the defendant committed the act. It also makes the client's predisposition (or lack thereof) to commit the crime of central importance to the jury's deliberations. On the other hand, it is a defense that can resonate with juries. The idea of the government manufacturing a crime and then prosecuting someone for participating in the commission of that crime is inherently repulsive.
This article reviews the statutory and case law surrounding entrapment in Colorado. It also discusses pretrial investigation and pretrial litigation in entrapment cases. Finally, it offers proposed jury instructions for use in entrapment cases.
The History of Entrapment in Colorado
Entrapment was first recognized at common law in Colorado in 1893 in Connor v. People.(fn1) There, a detective for the Denver and Rio Grande Railway contacted defendant Connor and others to convince them to rob the railway office. The Colorado Supreme Court recognized this as entrapment and reversed Connor's conviction:
During Prohibition, many Colorado bootleggers tried to assert entrapment, but Colorado courts were less willing to extend the defense in those situations.(fn3) As the common law defense of entrapment evolved in Colorado, the distinction between the proper investigation and detection of crime and the improper creation of crime grew in importance. In reversing a conviction for illegally trapping beavers in Garfield County, the Colorado Supreme Court noted that although aWe do not wish to be understood as intimating that the services of a detective cannot be legitimately employed in the discovery of the perpetrators of a crime that has been, or is being, committed, but we do say when, in their zeal, or under a mistaken sense of duty, detectives suggest the commission of a crime, and instigate others to take part in its commission in order to arrest them while in the act, although the purpose may be to catch old offenders, their conduct is not only reprehensible, but criminal, and ought to be rebuked, rather than encouraged,by the courts. And, accepting the version of the witness Holliday as true, it shows a state of facts that can have no place in the decent administration of justice.(fn2)
suspected person may be testedby being offered the opportunity to transgress the law[,] ... law enforcement officers may not induce persons, who would not have otherwise committed crime, to violate the law.(fn4)
In the early 1970s, Colorado courts rejected entrapment arguments in many drug sale and possession cases under the theory that "entrapment does not occur when a government agent merely offers a person an opportunity to commit an offense."(fn5) This line of cases also recognized that "to prove entrapment, the defendant must show that the prosecution played the primary role" in the commission of the offense.(fn6) In other words, a person who is ready, willing, and able to commit a crime with no more than "ordinary persuasion" cannot avail himself or herself of the entrapment defense.(fn7)
Entrapment as a Statutory Affirmative Defense
Entrapment was codifiedby statute in 1971 and the statute has never been amended. It provides:
Entrapment is an affirmative defense and must be specifically pled prior to trial.(fn9)The commission of acts which would otherwise constitute a defense is not criminal if the defendant engaged in the proscribed conduct because he was induced to do soby a law enforcement official or other person acting under his direction, seeking to obtain evidence for the purpose of a prosecution, and the methods used to obtain that evidence were such as to create a substantial risk that the acts would be committedby a person who, but for the inducement, would not have conceived of or engaged in conduct of the sort induced. Merely affording a person the opportunity to commit an offense is not entrapment even though representations or inducements calculated to overcome the offender's fear of detection are used.(fn8)
Burdens of Proof and Persuasion
To be entitled to an affirmative defense, the accused must present a scintilla of evidence to support the affirmative defense.(fn10) The "scintilla of evidence" test is sometimes expressed as the "some credible evidence" test; the two tests are identical.(fn11) Both tests simply require "some evidence to support the defense."(fn12) When the defense requests instructions, the court must look at the evidence in the light most favorable to the accused in deciding whether to give them.(fn13) Because the state's burden of proof is unfairly lessened when the trial court wrongly denies an affirmative defense, the error cannot be dismissed as harmless.(fn14)
In Colorado, once a defendant meets a burden of going forward with a claimed defense, the prosecution must disprove the affirmative defense beyond a reasonable doubt. Just as due process requires that an accused be acquitted unless the state can prove all the elements of a charged offense beyond a reasonable doubt, so too must acquittal follow when the state fails to disprove an affirmative defense beyond a reasonable doubt.(fn15)
After entrapment is raisedby a scintilla of evidence, "the jury must be convinced beyond a reasonable doubt that the defendant was predisposed to commit the crime in question before it enters a guilty verdict."(fn16) "Moreover, the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approachedby law enforcement agents."(fn17)
Generally, there are two parts of entrapment: (1) the conduct of the governmental official and (2) the defendant's state of mind prior to the commission of the crime. These two issues "interlock":
[D]id the government's behavior go beyond merely offering [the defendant] the opportunity to break the law, and if it did, was he so predisposed to commit the crime that his predisposition rather than the government's action caused the crime[?](fn18)
Colorado's Subjective Test
Entrapment can focus on either the defendant's subjective state of mind or the objective quality and quantity of the government's inducements. The majority of jurisdictions employ the subjective test, which looks to a defendant's subjective state of mind to determine whether the inducement was sufficient and whether he or she was predisposed to commit the crime prior to being approachedby the government agent. States that employ the objective test "focus on the propriety of methods usedby the police as measuredby generalized standards, and not on the character or propensities of an individual defendant."(fn19)
Colorado is a subjective test state:(fn20)
The overwhelming concern of the subjective test is to avoid...
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