In New York "entrapment" is a defense to a criminal charge. Criminal
Defense lawyers love "defenses" because if you can find a valid
one you win. I always thought entrapment was a red herring, something
they teach you in criminal law training, but never really happens, until
recently. In general entrapment means that law enforcement has convinced
a person to committ a crime they would not have committed anyway. In the
recent past i have dealt with three cases that may have been entrapment
by the police.
Sometimes, in order to get a feel for how a jury might feel about my defense
i run things past my friends and family members. I recently asked a family
member if they have ever heard of entrapment. They said yes - that is
when there is a bar located at the end of a road with only one way into
town and one way out...and all the cops have to do is sit at the stop
sign between 1 and 2 and they are going to get the drunks, like in Sodus
Point. Sorry thats a TRAP not entrapment.
So what is entrapment. it is when the police induce someone to break the
law, then arrest them for it. In law school it seems so easy - undercover
cop tell a complete stranger at a bar to go steal something, which they
do and then they are arrested. Turns out that never happens. In my experience
a police officer suspects a person, possibly rightfully, is up to no good.
They then suggest a type of activity that is arguably outside the scope
of the misconduct they would commit, then arrest them. Like what you say?
I have a very clear cut answer, my recent case involving a DEC officer
(DEC=law enforcement). He is called to a scene for a possible hunting
violation. Upon arrival a licensed hunter has properly shot a deer with
his bow and arrow. Officer checks the license as well as ID of the hunter.
ID is a non-driver ID, indicating he cannot drive a car because of a prior
DWI. Officer helps locate the Deer and tells hunter to take a car on the
farm closer to the deer to retrieve it. Hunter not wanting to disobey
officer follows instructions. He is prompty arrested for Driving with
a suspended license. In my opinion, clearly entrapment.
Now, two closer cases. Defendant is a suspected drug dealer. Confidential
Informant has purchased small amounts of cocaine from him in the past.
Drug charges are based on the weight of the drugs. Confidential Informant
works for the police (he counts as law enforcement). On the day defendant
will be busted Informant calls him and says I need you to double the typical
weight of cocaine (by cutting it with something other than cocaine) prior
to selling it to me so i can make more money. What he has done is induced
him into committing a more serious charge. The
Rochester criminal defense attorney (me) says that is entrapment.
Similarly, defendant is a suspected drug dealer. Confidential informant
sets up a "buy-bust", where following a purchase of drugs the
seller is arrested with the money just provided by the police. Confidential
informant chooses the location for the transaction - near a school. In
New York it is a more serious charge to sell drugs near a school. Defense
Attorney (me) says he has been induced to commit the eleveated crime because
the police (or their agent CI) chose the location.
It is still rare that entrapment is a defense at a crimnal trial in New
York. The biggest trouble with an entrapment defense is that is generally
allows the jury to hear some less than endearing things about the defendant.
For example, the prior drug transaction must be admitted to. Trails are
very risky for both sides. Perhaps the biggest advantage of understanding
the defense is that a smart criminal defense lawyer can use it to place
additional pressure or leverage on the prosecution to make a better plea
offer. Anytime there is a risk of losing the prosecution is more likely
to make a better offer.