Entrapment has been defined as the act of officers or agents of the government in inducing a person to commit a crime not contemplated by him, for the purpose of instituting a criminal prosecution against him. According to the generally accepted view, a law enforcement official, or an undercover agent acting in cooperation with such an official, perpetrates an entrapment when, for the purpose of obtaining evidence of a crime, he originates the idea of the crime and then induces another person to engage in conduct constituting such a crime when the other person is not otherwise disposed to do so. Sorrells v. U.S., 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413.
In order to use the entrapment defense in Massachusetts, some evidence of inducement that goes beyond a mere solicitation by a police officer or government agent must be presented at the criminal trial by the defense. Entrapment is a defense to be raised only at trial and is not presented by way of pretrial motion to dismiss. Once raised properly, the burden is then on the prosecutor to prove beyond a reasonable doubt that the defendant was initially predisposed to commit the crime and was therefore “ready and willing to commit the crime whenever the opportunity might be afforded.” Commonwealth_v_Doyle_67_Mass_App_Ct_846_2006.
If the defendant on trial has a prior criminal history of distribution of drugs or possession with intent to distribute drugs then that history can be used by the prosecution to show that the person was already predisposed to commit the offense and thereby negate the defense of entrapment. See Commonwealth v. Vargas, 417 Mass. 792, 632 N.E.2d 1223 (1994).
Mere solicitation by the police is not enough to show the inducement needed for a successful entrapment defense. Additional evidence of the police or government agent pleading, arguing or engaging in lengthy negotiations or utilizing aggressive or coercive tactics must be presented by the defense either through direct testimony or by cross-examining the prosecution witnesses. The prosecution will then have the burden to prove beyond a reasonable doubt that the accused was predisposed to commit the crime.
In Commonwealth v. Harding, 53 Mass. App. Ct. 378, 383 n.3, 759 N.E.2d 1203, 1207 n.3 (2001), The Appeals Court in Massachusetts referred to a test for determining a defendant’s predisposition to commit a crime. The factors to be considered consist of (1) the defendant’s character and reputation; (2) whether the government initially suggested the criminal activity; (3) whether the defendant engaged in the activity for profit; (4) whether the defendant showed any reluctance; and (5) the nature of the government’s inducement.
Patrick J. Murphy, Esq. is an experienced Boston criminal defense attorney who clearly understands the defense of entrapment and is ready, willing and able to use it and all other defenses allowed by our criminal justice system to defend you aggressively and tirelessly. Contact the Law Office of Patrick J. Murphy, Esq. today ensure quality legal representation in your time of need. Our Boston criminal law office is located at 11 Beacon Street, Suite 1210, Boston, MA 02109. You may contact Attorney Murphy by telephone at (617) 367-0450.