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Specify the Two Elements of the Defense of Entrapment

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Entrapment is a complete defense to a criminal charge, on the theory that "Government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute." Jacobson v. United States, 503 U.S. 540, 548 (1992). A valid entrapment defense has two related elements: (1) government inducement of the crime, and (2) the defendant's lack of predisposition to engage in the criminal conduct.

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A recent case in the United States District Court for the Southern District of New York, United States v. Silva, gave rise to a renewed consideration of the defense of entrapment. This was a narcotics case tried without a jury. The defendant, charged with the unlawful sale of narcotics, acknowledged that he delivered the drugs and received money on the two occasions set forth in the indictment. However, he denied that he was, in fact, a principal and pleaded the defense of entrapment-that the crime was induced by the actions and conduct of a government agent. The question posed in the case was the conflict of testimony between the Government's special employee, who was the informer, and the defendant. The defendant testified that he was led into addiction by the informer who originally gave him drugs free of charge for a period of time. Later, the informer charged the defendant $5 "per shot" which the informer injected intravenously by the use of a hypodermic needle. The defendant testified that with respect to the first transaction charged in the indictment, he was in need of a "shot" and penniless. Going to the room of the informer, the defendant was told the informer would take care of the defendant if he would deliver a package. It is safe to say that ninety-five per cent of all federal narcotics cases are obtained as the result of the work of informers, whether they be paid or not.' Narcotics agents (who are well-trained and of a high calibre) can uncover large syndicates selling narcotics only through iniormers and undercover agents who can "tip them off" as to peddlers and pushers. The latter, in turn, lead the agents to the wholesalers and importers. It is impossible for a policeman or a narcotics agent, even though not in uniform, to make contact with the underworld and make a "buy" without using an informer or undercover agent as a decoy. A narcotics pusher, retailer or wholesaler, without this kind of stratagem, would no more sell to any one of the approximately 285 federal narcotics agents in this country than he would be foolish enough to sell directly to a police commissioner. The federal experience has been that normal victims of narcotic addiction are, by and large, a very poor class of people who can usually be recognized as addicts. 13 An informer may pose as an addict or as a dealer in narcotics. Federal narcotic arrests are generally based on an original introduction by an informer to either a user or supplier and are usually mad only after two or more sales

In the supplier cases, the agent's purpose is properly to endeavor to probe to the source of supply, and not merely to arrest the one making the delivery.

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While we recognize that some legal jurisdictions treat the concept of entrapment as normatively thick, we consider that it is not in the interests of philosophical inquiry into the concept and into the acceptability or otherwise of acts of entrapment to limit the concept in this way

The underlying difference between Ashworth’s approach and ours is this (Mike Redmayne, 2012). His attempt to build a working definition is based on how entrapment is defined legally in jurisdictions that have an entrapment defence or in which entrapment can be grounds for stay of legal proceedings against the accused, or for the exclusion of certain evidence. We base our approach on two existing definitions from legal philosophy that have what we take to be the advantage of providing for acts to count as acts of entrapment even when those acts are not committed in jurisdictions in which the concept of entrapment is in legal currency. Their greater generality in this respect, we think, means that they have greater analytical power: that is, they will enable us to understand more than do definitions that adopt the rival, normatively thick, approach to defining entrapment. For example, if an agent merely wants to make the target feel guilty, or to put the target in a position in which the agent has some power over the target other than the power to prosecute, expose, or to threaten to do so, then the act is one of mere beguilement rather than one of the kind of entrapment that mainly interests us. We take it that cases of mere beguilement are philosophically interesting and that they raise similar issues, concerning, for example, the ethics of subjecting others to temptation, as do the cases of entrapment that mainly interest us. The definitions discussed so far attempt to define only legal entrapment to commit a crime. Entrapment may be defined more generally, to encompass all four types identified by dropping the reference to law-enforcement agents and widening the class of induced acts (Fiona Leverick, 2010).

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Finally, entrapment is a defense to criminal charges on the basis that the defendant only committed the crime because of harassment or coercion by a government official. Without such coercion, the crime would never have been committed. Entrapment can be a difficult defense to assert because it requires the defendant to establish that the idea and impetus for the crime was introduced by government officials, and the defendant was not already willing or predisposed to commit the crime. It is also important to note that entrapment can only occur with a government official, such as an FBI official or a police officer, not a private individual

Additionally, since it is an affirmative defense, the criminal defendant has the burden of establishing that entrapment occurred.

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United States v. Manzella, 791 F.2d 1263, 1269 (7th Cir. 1986)

Fiona Leverick and Findlay Stark, “How do You Solve a Problem Like Entrapment? Jones and Doyle v HM Advocate”, Edinburgh Law Review 14 (3) (2010): pp. 467–472, note (p. 467)

Mike Redmayne, “Exploring Entrapment” in Lucia Zedner and Julian V. Roberts (eds.), Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth (Oxford: Oxford University Press, 2012), pp. 157–170, pp. 158–159

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