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Understanding The Defense of Entrapment

Although Hollywood and screenwriters have led many individuals to believe that police officers engage in entrapment techniques on a regular basis, the defense of entrapment is actually a fairly difficult standard to fulfill. Entrapment is a legal defense that has been built into New Jersey’s criminal code under NJSA 2C:2-12. According to the statute, entrapment requires much more than gentle persuasions from law enforcement to commit a criminal offense.

New Jersey’s standard for entrapment places the burden on the defendant to show by a preponderance of the evidence that one of two situations transpired. The defendant must show either that the police made knowingly false statements or representations to make the defendant believe the conduct isn’t illegal, or the police persuaded a person to commit a crime that they would not have otherwise committed. Evidencing one of these two circumstances is a fairly difficult endeavor and only talented attorneys are likely to have success using the entrapment defense.

Under New Jersey law, the entrapment defense has both objective and subjective elements. The defense is subjective because it requires a jury to find that the defendant’s criminal conduct was the direct result of the officer’s persuasions. In this manner, the jury must find that the actor would not have committed the act if not for the police enticement. Conversely, the entrapment defense also entails an objective standard because it can require a jury to determine whether the persuasions were sufficient to coax an “average person” into committing the criminal act.

In addition to the above statutory entrapment formulation, there is also a due process entrapment defense that is not expressly codified. Due Process Entrapment requires the defense to show that the police conduct was so “patently wrongful” that it constituted an abuse of power and perverts government function. When determining whether due process entrapment applies the judge will consider: why the police targeted a specific defendant, the degree to which the police manufactured the crime, the means by which police coaxed the defendant into acting, whether the crime was violent or dangerous. Although this due process entrapment defense is technically used in New Jersey, it is relatively new to the courts and the statutory provisions are typically more easily employed.

If a defendant successful argues an entrapment defense they will not be legally liable for the charged offense. The court will return a verdict of not guilty. Entrapment is not an available defense, however, for crimes involving death or bodily injury. If no bodily injury occurred, such as for conspiracy to commit an assault where the plan failed, then the entrapment defense can be used.