Explaining Entrapment

Many people are at least somewhat familiar with the entrapment defense, which entails an admission that a criminal defendant engaged in a crime but was essentially forced to by a police officer or other government agent. Sting operations, popularized by certain T.V. true-crime programs, have also pushed the concept of entrapment more into mainstream legal discussions. At its core, entrapment is a recognized, affirmative defense that may, when appropriate,  be employed in federal or state court. 

Origin of Entrapment

The Supreme Court case that established the entrapment defense is Sorrells v. United States (1932), in which the United States Supreme court determined that an individual  illegally supplied contraband to an undercover agent. Occurring during prohibition, defendant Sorrells was badgered into providing a prohibition agent with whiskey after repeated requests from the agent. Two subsequent cases provided clarification on the defense of entrapment. 

Subjective vs. Objective Test

There are two tests employed to show that entrapment occurred in a criminal case: the subjective and objective tests. The subjective test focuses on the defendant and attempts to prove that he or she was not predisposed to commit the offense. The objective test, which is easier to prove than the subjective test, is an attempt to show that the government’s actions would have caused a normal, law-abiding citizen to commit the crime in question. 

Entrapment in Federal Court

If you are a defendant in federal court, you should be aware that this court applies the subjective test in determining entrapment. However, demonstrating that the behavior of the government induced you to commit a crime can still be helpful in your defense. To dispel a common myth, government agents are not required to identify themselves as such during undercover operations.

Entrapment in State Court

The defense of entrapment is recognized in all 50 states, but each state has different laws that clarify their positions on the issue. Florida courts officially recognize both the subjective and objective tests. Successful use of entrapment may lead prosecutors to dismiss charges, or it may simply prove persuasive to a jury and result in a not guilty verdict.


If used effectively in court, the entrapment defense may be the difference between an acquittal or a conviction. Another plus for defendants is that the burden of proof required to prove entrapment is by a preponderance of the evidence, which is a lower bar than the prosecution must meet to prove the defendant committed a crime. 

It takes an experienced and competent attorney, however, to successfully show that the prosecution used entrapment. Get in touch with us today at (305) 374-5544 to get started on your white-collar defense. 

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Weisberg Kainen Mark, PL

As experienced trial lawyers with a passion for justice, our firm provides clients with compelling advocacy, attorney availability, and creative solutions to your tax or criminal law matters.

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