Entrapment in D.C.: The Legality of Recent Decoy Operations

Your client is heading home, minding his own business, when he comes across what appears to be a homeless man sleeping on a bench at the metro station. Sticking out of the man’s coat pocket is a shiny new I-Phone. In a moment of weakness, your client grabs the I-Phone and is immediately taken to the ground by both the man and a number of other undercover police officers who were lurking at the scene.

If your client had been thinking clearly, he would have realized that metro police do not allow homeless people to sleep on metro benches. If he had been paying attention, he would have noticed that the sleeping man was positioned directly under a surveillance camera.

The government now has an almost iron-clad case against your client for robbery. Identification will be not be a problem:  your client was arrested on the scene within moments of the offense. In addition to the surveillance video, the government can offer the testimony of both the officer lying on the bench and the other undercover police officers who were assisting with the decoy operation. Nor will the government have any difficulty making out the elements of the offense. Robbery in D.C. is defined roughly as the use of force or threat of force to take something of value from another person.

It’s entrapment, says your client. Good luck with that. The criminal defense of entrapment is almost unique in at least one respect:  Although everyone seems to be familiar with the defense, it is rarely asserted, much less successfully.

The U.S. Supreme Court has defined entrapment as 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.”  Sorrells v. U.S., 287 U.S. 435, 454 (1932). Like self-defense or insanity, it is an affirmative defense, meaning that the defendant has the initial burden of raising it.

Depending on the jurisdiction, there have traditionally been two different forms of the entrapment defense. The “subjective” test looks at the defendant’s state of mind. Entrapment can be claimed if the defendant had no “predisposition” to commit the offense.

The “objective” test looks instead at the government’s conduct. Entrapment occurs when the actions of government agents would have caused a normally law-abiding person to commit the crime.  Grounded in public policy considerations, this test is the based on the recognition that, similar to the Fourth Amendment and Miranda exclusionary rules, the government should not be able to benefit from the malfeasance of its agents.

Wayne LaFave notes that, while there might be a slight trend in the opposite direction, most jurisdictions tend to favor the “subjective” approach. The question, he says, is not who held out the bait but who took it.

The standard in D.C. combines elements of both tests. The defendant bears the initial burden of showing government inducement. If he is successful, the burden then shifts to the government to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime.

There are a number of reasons the defense is so rarely asserted. For one thing, D.C. law permits law enforcement officials to use many different forms of inducement, including persuasion, fraudulent representations, threats, coercion, harassment, promises of reward, pleas based on need, sympathy and friendship. As with the decoy example used above, it holds that a person is not entrapped when he or she is ready and willing to violate the law and law enforcement officials – or their agents – merely afforded an him/her an opportunity to do so.

Perhaps more importantly, asserting the entrapment defense can result in the defendant having to forego many of the traditional protections in a criminal case. Although the government is normally prevented from introducing “prior bad acts” into evidence, the defendant’s assertion of the entrapment defense could bring the defendant’s “predisposition” to commit the offense into play, thus turning the defendant’s character into a major issue at trial. It could mean, for example, that the government is allowed to admit evidence of a prior criminal record, reputation evidence, acts of prior misconduct, and other information generally barred as hearsay or as being more prejudicial than probative.

As for the decoy operations that are now being used throughout the city, you might think that there is already enough criminal activity in the District without police taking active measures to create even more. Not surprisingly, juveniles tend to be particularly susceptible to the ruse. These operations are in addition to the regular use of “controlled buys” in drug cases and the use of female undercover officers in prostitution solicitation cases.