The issue of entrapment arises initially as a defense when a person is accused of committing a criminal act in which government agents solicited, and perhaps actively participated in, the conduct for which the defendant stands accused. Classic entrapment situations occur when law enforcement officers, through agents or informers, solicit an illegal transaction, such as the sale of contraband. The evidence thereby obtained is used to support the prosecution of the individual accepting the solicitation. Solicitation is an important technique of law enforcement because evidence of illegal transactions is often impossible to obtain by other methods. Certain uses of solicitation brought to the attention of the federal courts early in this century demonstrated the need for judicial limitation by prescribed standards. These cases involved factual settings where officials, eager to obtain a person's conviction for a particular substantive offense, seemingly "set him up" for prosecution by inducing him to participate in an illegal transaction when it was questionable whether the accused would have taken part if unsolicited. When directing their solicitation to this end, it is doubtful that enforcement officers are acting within the limits of their legitimate functions. Moreover, there is a real possibility that the government might attempt systematically to induce criminal conduct in a politically or socially unpopular individual or group so as to hamper their activities through prosecution or conviction. These situations present considerable legal ambiguity with regard to the policy objectives the entrapment doctrine has been designed to promote, the elements of the defense as determined by these objectives, and the language employed to describe the elements. It is not surprising, therefore, that a sizable volume of judicial opinion and legal literature discusses the possible recognition of a bar to criminal conviction on the ground that the alleged criminal conduct was induced by the police.
Robert H. Thomson III,
Elevation of Entrapment to a Constitutional Defense,
U. Mich. J. L. Reform
Available at: https://repository.law.umich.edu/mjlr/vol7/iss2/5
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