CR07-403.  Entrapment (01/02/19)

Reporter’s Note

As discussed most recently in State v. Atwood, No. 2016-203, 2017 WL 2963080, at *3 (Vt. June 26, 2017) (unpub. mem.), the test for entrapment is an objective one that is generally for the jury:

The question of entrapment is determined by the trial court as a matter of law unless there is a dispute as to the facts or the inferences to be drawn from those facts. State v. Hayes, 170 Vt. 618, 619–20 (2000). Because the purpose of the entrapment defense “is to deter improper governmental activity in the enforcement of the criminal laws,” this Court, like many other courts, has adopted an objective test that focuses on the conduct of government agents rather than the predisposition of the defendant. Wilkens, 144 Vt. at 28–29. In Wilkens, we adopted the objective test articulated in the Model Penal Code:

A public law enforcement official or a person acting in cooperation with such an official perpetuates an entrapment if for the purpose of obtaining evidence of the commission of an offense, [he or she] induces or encourages another person to engage in conduct constituting such offense by . . . employing methods of persuasion or inducement [that] create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.

144 Vt. at 29 (quoting Model Penal Code § 2.13(1)(b) (Proposed Official Draft 1962)).

Thus while the defendant’s interactions with police are undoubtedly relevant to whether police actions would have induced a person who was not ready to commit the offense, any “predisposition” to commit to the offense is not relevant. See State v. Wilkins, 144 Vt. 22 (1983) for a greater discussion of this issue:

Justice Frankfurter also argued that by concentrating on the defendant’s predisposition rather than on the conduct of the police, the subjective test leads to different results depending on the identity of the defendant. Justice Frankfurter objected to this inconsistency:

Permissible police activity does not vary according to the particular defendant concerned; surely if two suspects have been solicited at the same time in the same manner, one should not go to jail simply because he has been convicted before and is said to have a criminal disposition.

Id. at 27 (citing Sherman v. United States, 356 U.S. 369, 383 (1958)).

As one court articulated the objective test:

If the law enforcement methods create the substantial risk that the offense will be committed by persons other than those who are ready to commit them, entrapment may exist, although the actor himself may have been predisposed. When official conduct inducing crime is so egregious or outrageous as to impugn the integrity of the judicial processes, predisposition of a defendant becomes irrelevant.

State v. Rockholt, 186 N.J. Super. 539, 547, 453 A.2d 258, 262 (App. Div. 1982), aff’d, 96 N.J. 570, 476 A.2d 1236 (1984).