South Carolina Lawyer
SC Lawyer, Sept. 2003, #1.
Beyond the bar September 2003 Entrapment and due-process defenses: the devil made me do it!
South Carolina LawyerSeptember 2003Beyond the bar September 2003 Entrapment and due-process defenses: the devil made me do it!By Warren MoïseIt is proof of my dedication to in-depth research for this column that I felt obligated ex necessitate to rent the movie Entrapment starring Catherine Zeta-Jones. The movie had little to do with entrapment. However, with Miss Zeta-Jones' acting abilities, the research was not wasted.
Since Sorrells v. United States, 287 U.S. 435 (1932), the common-law defense of entrapment has slowly developed. Entrapment is often alleged in prosecutions for illegal consensual acts, such as those involving drugs, gambling and sex. However, it may include other scenarios such as perjury entrapment in which the accused alleges that the government subpoenaed him before a grand jury to have him lie under oath.
Garden variety entrapment
Entrapment is established when: (a) the government induces a person to commit a crime and (b) the innocent person had no predisposition to engage in the criminal act. United States v. Squillacote, 221 F.3d 542 (4th Cir. 2000) (Traxler, J.). Put another way, entrapment is the conception and planning of a crime by an officer and his procurement of its commission by someone who would not have perpetrated it but for the trickery, persuasion or fraud of the officer. State v. Jacobs, 238 S.C. 234, 119 S.E.2d 785 (1961). "Inducement" focuses on the government's conduct while "predisposition" focuses on the defendant's attitude or condition. "'Inducement' is a term of art: it involves elements of government overreaching and conduct sufficiently excessive to implant a criminal design in the mind of an otherwise innocent party." United States v. Daniel, 3 F.3d 775, 778 (4th Cir. 1993). "Predisposition" pertains to the defendant's state of mind before a government agent makes any suggestion that he commit a crime, United States v. Osborne, 935 F.2d 32, 37 (4th Cir. 1991) and is found in the accused's ready response to government inducement. In the federal courts, a defendant does not necessarily have to admit he acted with the required intent so long as there was government inducement and a lack of predisposition. Cf. United States v. Hines, 2002 WL 31496420, 4th Cir. Op. No. 01- 5011, decided Nov. 8, 2002 (noting support for contention that...