3.9 Entrapment

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

3.9 ENTRAPMENT

3.901 In General. The law of entrapment is one of the most controversial and least understood concepts of the criminal law. The concept is controversial because it constitutes a complete defense to a consummated crime. It also calls into question the investigative techniques of law enforcement officials since, under one view of the doctrine, law enforcement officials are often the instigators and active participants in crime. The publicity generated by the Abscam controversy in the early 1980s created a public debate on the morality and usefulness of law enforcement activities designed to "entrap" persons suspected of criminal activities.

The defense of entrapment is confusing because the United States Supreme Court decisions are ambiguous. Not only are the elements of the defense vague and difficult to apply, but the source of the defense is also frequently misunderstood. It is often assumed that the defense is constitutionally grounded and that United States Supreme Court pronouncements on the subject are binding in state criminal prosecutions. Although the Court has

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stated that it is possible to conceive that the conduct of law enforcement officials might be so outrageous that due process principles would absolutely bar the government from invoking the judicial process to obtain a conviction, ¹⁹⁸ its entrapment decisions have been extra-constitutional in origin and based on the Court's perception of congressional intent in authorizing criminal punishment under federal law. ¹⁹⁹ The entrapment decisions of the Supreme Court, therefore, are not necessarily binding on the states, although most jurisdictions have accepted the rationale of the Court's decisions and have incorporated them into the law of their respective jurisdictions.

3.902 The Standard. The leading Supreme Court decision on entrapment, Sorrells v. United States, ²⁰⁰ promulgated the following test: "Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer." The Virginia Supreme Court has adopted this standard. ²⁰¹ According to the Virginia Supreme Court, the defense of entrapment is, in essence, a rule of fairness that bars the conviction of an accused in the event of improper police conduct. ²⁰²

The defense of entrapment is established when the criminal design originates with the officials of the government and...