The most popular question I have been asked over the course of my career has been some version of whether or not a person should take the breathalyzer test. Surprisingly, this question has been asked much more than the ever trendy: “how do you represent those people?” That changed over the course of the last couple of months.
The most popular question I have been asked recently has been about entrapment. I have never had a client with an entrapment defense. It appears that the defense is more popular on TV crime drama shows than it is under South Carolina case law. It is, however, a viable defense.
The entrapment defense is usually used in consensual crimes like drugs, prostitution and gambling. That’s probably because those crimes are the most common examples of when entrapment takes place. Under South Carolina case law, however, entrapment can be used as a defense in other criminal cases.
Entrapment is a simple, straight forward defense. There are only two elements involved: government inducement and lack of predisposition. This is a good definition:
The affirmative defense of entrapment is available where there is the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for trickery, persuasion, or fraud of the officer.
Although it is an affirmative defense, the defendant only has to demonstrate a scintilla of evidence that the state induced him to commit the crime. Then the state has to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime. The defendant does not have to testify if he can get this evidence admitted through other witnesses.
The inducement element is pretty easy to satisfy. Did the state set up the deal? It’s the second element that can get difficult. The courts will focus on this element and will do so by looking at the defendant’s character. If the defendant has a criminal record of committing the same type of crime, he will be deemed predisposed to commit this crime. What about the defendant with no criminal record and no criminal history?
State v. Brown, involved a retired Army First Sergeant who was honorably discharged. He was also gainfully employed at the time of the drug transaction. An acquaintance and confidential informant set up the drug deal with Brown. On appeal, the court reversed Brown’s conviction because there was evidence to support the presentation of the defense of entrapment to the jury.
So, there is the answer. It’s a jury question.