5.2.6 Entrapment as a Matter of Law

• Library: Criminal Procedure in Practice (ABA) (2018 Ed.)

5.2.6 Entrapment as a Matter of Law

While the entrapment issue under the subjective test can be resolved by the trial judge as a matter of law, it generally is not. The predisposition matter presents the key issue of the defendant's state of mind, and mens rea questions are typically determined by the jury. The court can keep the predisposition matter from the jury, however, in two distinct situations. First, a judge will not allow the jury to consider the entrapment defense where evidence of the defendant's state of mind is overwhelming.²⁷ In such a case, there is no jury question as to the defendant's predisposition to commit the crime.²⁸ Second, and conversely, a judge will remove a case from the jury and dismiss the charges against a defendant if the undisputed facts establish the entrapment defense as a matter of law.

Entrapment as a matter of law exists when the undisputed evidence demonstrates the defendant's clear absence of predisposition. In deciding whether there is entrapment as a matter of law in a particular case, a court "view[s] the evidence in the light most favorable to the government . . . ."²⁹ The court must decide whether any reasonable juror could conclude beyond a reasonable doubt that the defendant "was predisposed to violate the law before the Government intervened."³⁰ It is very much a fact-specific process.

The factors relevant to determining a defendant's prior disposition include the character or reputation of the defendant, including any prior criminal record; whether the suggestion of the criminal activity was initially made by the Government; whether the defendant was engaged in the criminal activity for profit; whether the defendant evidenced reluctance to commit the offense, overcome only by repeated Government inducement or persuasion; and the nature of the inducement or persuasion supplied by the Government.³¹

Jacobson v. United States³² is the leading case and continues to have a major impact on long-term government "sting" operations. The facts of that case revealed, in a period of over two years, "repeated efforts by two Government agencies, through five fictitious organizations and a bogus pen pal, to explore [the defendant's] willingness to break [the law] by ordering child [pornography] through the mail."³³ The government officials had obtained the defendant's name from a mailing list of a company that had been shut down for sending obscene materials. However, at the time that the defendant had ordered these materials, they were lawful.³⁴ At the end of the extensive sting operation, the defendant purchased an illegal magazine from government officials through the mail.

The Supreme Court found insufficient evidence of criminal predisposition in Jacobson. The defendant's previous order of...