Entrapment
From Wikipedia, the free encyclopedia
 |
The examples and perspective in this article or section may not represent a worldwide view of the subject. Please improve this article or discuss the issue on the talk page. |
 |
| Criminal defenses |
|---|
| Part of the common law series |
| Defenses to crime |
| Actual innocence |
| Excuse and exculpation |
| Defenses that deny the act: |
| Alibi · Mistaken identity |
| Frameup · Falsified evidence |
| False confession · Automatism |
| Defenses that negate intent: |
| Infancy · Entrapment |
| Insanity · Mental disorder |
| M'Naghten Rules |
| Diminished responsibility |
| Mistake of law · Mistake of fact |
| Intoxication |
| Defenses that justify the act: |
| Self defense · Consent |
| Duress · Necessity |
| Provocation |
| See also Criminal Law |
| Criminal Procedure |
| Other areas of the common law |
| Contract law · Tort law · Property law |
| Wills and trusts · Evidence |
| Portals: Law · Criminal justice |
In jurisprudence, entrapment is a legal defense by which a defendant may argue that he or she should not be held criminally liable for actions which broke the law, because he/she was induced (or entrapped) by the police to commit said acts. For the defense to be successful, the defendant must demonstrate that the police induced an otherwise unwilling person to commit a crime. Entrapment is an issue that must be considered in designing sting operations.
Contents |
[edit] United States
In United States law, the general perception of entrapment is that the accused would never have committed the criminal act but for the police inducement. However, when a person is predisposed to commit a crime, offering opportunities to commit the crime is not entrapment, a widely held misconception similar to the idea that police officers must answer questions truthfully if they are asked the same question three times, or that they must say "yes" if asked if they are a police officer.
- Legal scholars argue that "the American legal system views entrapments as morally odious. Law enforcement officials cross the acceptable line, the courts have held, when they prey upon human vulnerabilities and “implant in the mind of innocent persons the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” American courts have often dismissed criminal cases involving entrapments and let the defendants go. See The Murder They Wrote.
- John De Lorean was arrested in 1982 for selling cocaine to undercover police; in court, De Lorean argued that the police had asked him to sell them the cocaine (and threatened him as a form of coercion). He was found not guilty. De Lorean's attorney stated in Time (March 19, 1984), "This [was] a fictitious crime. Without the government, there would be no crime." The defense of entrapment was unsuccessful in the Abscam operation in which several members of the United States Congress were convicted of accepting bribes.
- Another famous entrapment scandal occurred in April 1998, when British pop singer George Michael was arrested in a Los Angeles bathroom by an undercover police officer pretending to be a homosexual in order to get George Michael to perform oral sex and thus get arrested. [1]
Leading cases include :-
- Greene v. United States, 454 F. 2nd 783 (9th Cir. 1971).
- People v. Barraza, 23 Cal. 3rd 675 (1979).
- Regina v. Sang.
- Regina v. Loosely.
- Sorells v. United States, 287 U.S. 435 (1932).
- United States v. Ordner, U.S. Court of Appeals, 2nd Circuit, excerpted in Michael Gorr and Sterling Harwood, eds., Controversies in Criminal Law: Philosophical Essays on Responsibility and Procedure (Boulder, CO: Westview Press, 1992), pp. 215-219.
[edit] Canada
In Canada, which has a different definition of entrapment than the United States, there are two forms of entrapment:
- Random virtue testing: police offering a random member of the public an opportunity to commit a crime. Police must have a reasonable suspicion of a person in order to provide someone opportunity to commit a crime[citation needed].
- If police have a reasonable suspicion they can only provide an opportunity, not convince or induce the person to commit the crime[citation needed].
While Canada focuses on the actions of the police, American law focuses on the motivation of the accused. In the United States, entrapment exists if the accused's main motivation was the offer made by the police. If the accused was more motivated by other concerns, such as financial gain, then it is not entrapment despite police actions[citation needed].
[edit] United Kingdom
In English law entrapment is not a substantive defence; i.e. it does not automatically negate the prosecution case. The Court has the authority to stay the proceedings (prevent the case going ahead) if to proceed would "threaten the integrity of the justice system". The Court may also exclude evidence obtained unfairly under the provisions of section 78 of the Police and Criminal Evidence Act, but this is held not to be appropriate where entrapment is claimed. (See commentary in external links for further reference)
[edit] Germany
In German law, it is normally forbidden (§ 26 StGB) to induce or persuade someone to commit a crime, including the attempt to do so (§ 30 StGB, in German). However, the German Federal Court Of Justice has established that entrapment by undercover police agents is not a reason to drop the case per se (e.g. GA 1975, 333, 334). If undercover agents have been used without proper justification, punishment for the committed offence may be reduced (1st Senate's decision in 1 StR 148/84 - 23rd of May, 1984).
- In the case of persons who are not initially under suspicion and unlikely to commit a certain crime, a decision from 1999 (18th of November, BGH 1 StR 221/99, in German) stated that entrapment of such persons violates the right to a fair trial (and therefore the punishment for the committed offence may be reduced).
[edit] Europe (Council of Europe)
The European Court of Human Rights has criticised the use of undercover agents in Germany and the United Kingdom, especially in cases related to drug trafficking (see e.g. this article).
[edit] External links
[edit] References
- Gerald Dworkin, "Entrapment and the Creation of Crime," in Controversies in Criminal Law: Philosophical Essays on Responsibility and Procedure (Boulder, CO: Westview Press, 1992), pp. 220-231.
- Michael Gorr and Sterling Harwood, eds., Controversies in Criminal Law: Philosophical Essays on Responsibility and Procedure (Boulder, CO: Westview Press, 1992), 273pp.
