---
title: "Entrapment"
type: Legal Rule
source: https://casebriefly.com/legal-rules/entrapment
---

# Entrapment

Entrapment is a defense asserting that the government induced the defendant to commit a crime they were not predisposed to commit. The subjective test focuses on the defendant's predisposition, while the objective test focuses on government conduct.

## Definition

Entrapment is a defense that arises when law enforcement officials induce a person to commit a crime that they would not otherwise have committed. The defense recognizes that while the government may use undercover operations and provide opportunities to commit crimes, it may not manufacture crime by implanting criminal intent in an otherwise innocent person. Two distinct tests have developed for evaluating entrapment claims.

The subjective test, used by the majority of jurisdictions and the federal courts, focuses on the defendant's predisposition. Under this test, entrapment is established if the government induced the defendant to commit the crime and the defendant was not predisposed to commit it. If the defendant was already willing and ready to commit the crime, government encouragement does not constitute entrapment. Predisposition is evaluated based on the defendant's character, prior criminal history, response to the inducement, and other evidence of willingness. The subjective test essentially asks whether the criminal design originated with the government or with the defendant.

The objective test, favored by the Model Penal Code and a minority of jurisdictions, focuses on the government's conduct rather than the defendant's character. Under this test, entrapment occurs when the government's conduct would have induced a law-abiding person to commit the crime. The defendant's predisposition is irrelevant. This test aims to deter improper government conduct and avoids the potentially prejudicial inquiry into the defendant's character and prior criminal history. Under either test, merely providing an opportunity to commit a crime does not constitute entrapment; there must be active inducement or persuasion.

## Elements

- Government agents or their operatives induced or persuaded the defendant to commit the crime
- Under the subjective test: the defendant was not predisposed to commit the crime
- Under the objective test: the government's conduct would have induced a law-abiding person to commit the crime
- Merely providing an opportunity to commit a crime is insufficient; active inducement is required
- The defense is unavailable if the defendant was predisposed (subjective test) or the inducement was not excessive (objective test)

## Key Case

Jacobson v. United States, 503 U.S. 540 (1992)

## Landmark Cases

| Name | Citation | Significance |
| --- | --- | --- |
| Jacobson v. United States | 503 U.S. 540 (1992) | Found entrapment where government agents spent 26 months soliciting a defendant to order illegal material, manufacturing predisposition through persistent contact |
| Sorrells v. United States | 287 U.S. 435 (1932) | Established the subjective test for entrapment, focusing on whether the criminal design originated with the government |
| Sherman v. United States | 356 U.S. 369 (1958) | Reaffirmed the subjective test and found entrapment where a government informant exploited the defendant's drug addiction |
| United States v. Russell | 411 U.S. 423 (1973) | Held that government supply of an essential ingredient for drug manufacturing did not constitute entrapment where defendant was predisposed |

## Exam Tips

- Identify which test the jurisdiction uses (subjective or objective) because the analysis and outcome can differ significantly
- Under the subjective test, evidence of the defendant's prior criminal activity or willingness is highly relevant to predisposition
- Distinguish between merely providing an opportunity (not entrapment) and active inducement or persuasion (potential entrapment)
- Note that entrapment requires government action; inducement by a private person does not constitute entrapment

## Common Mistakes

- Confusing entrapment with the government merely providing an opportunity to commit a crime; sting operations that offer an opportunity without active inducement do not constitute entrapment
- Applying the objective test in a jurisdiction that follows the subjective test, or vice versa
- Forgetting that entrapment requires government involvement; pressure or encouragement from a private individual cannot support an entrapment defense

## Mnemonic Or Memory Aid

"Subjective = defendant's Soul; Objective = officer's Overreach" -- the subjective test looks at the defendant, the objective test looks at the government

## Related Rules

- necessity-defense
- duress-defense
- attempt

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Source: [Entrapment — CaseBriefly](https://casebriefly.com/legal-rules/entrapment)