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Entrapment is a defense available in conspiracy cases.  A defendant can make an entrapment defense by stating that s/he was persuaded and induced by a law enforcement officer or agent to participate in a conspiracy and that s/he had no previous intention to conspire[i].  In such cases, the conviction is excluded by the court as a matter of policy.

However, the defense of entrapment will not be available to a defendant who avails him/herself of the benefit of the opportunity provided to him by the government official with an intention to commit conspiracy[ii].  But if there is evidence to show that the intention to participate in a conspiracy was the result of the persuasion or inducement from the government official then a defendant will not be convicted.

A defendant who takes the defense of entrapment must show the following:

  • that the idea of conspiracy came from the government official and not from the defendant;
  • that the government official persuaded or induced the defendant to commit the crime; and
  • that before inducement, the defendant was not ready to commit the crime.

A defendant who becomes successful in proving an entrapment will be exempted from being punished for conspiracy.  However, the defendant will not be exempted if the defendant was part of a conspiracy group of more that two persons.  In this case, the defendant can get an exemption only if the other conspirators testify to the defendant’s entrapment [iii].

If the objective of the conspiracy is of a nature that it was to be performed by the government official alone in exercise of his/her official duty, then the defendant will be exempted from punishment.  However some courts have refused to accept this principle on the ground that it is the agreement that constitutes the crime of conspiracy and not the attainment of the objective[iv].

When a defendant makes the defense of entrapment, it is the duty of the government to prove beyond reasonable doubt that the defendant was not entrapped by the government official.

[i] People of the V.I. v. Poleon, 50 V.I. 144 (V.I. Super. Ct. 2008)

[ii] State v. Rolon, 146 Idaho 684 (Idaho Ct. App. 2008)

[iii] Moore v. State, 290 So. 2d 603 (Miss. 1974)

[iv] People v. Liu, 46 Cal. App. 4th 1119 (Cal. App. 1st Dist. 1996)

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