Wednesday, January 21, 2009

Internet Predators - The Entrapment Defense

My standard disclaimer:  I am not an attorney and what ever I say about legal stuff is my opinion and should not be considered legal advice in any way.

A ruling on appeal in the Guilford County, NC Supreme Court that appeared in North Carolina Lawyers Weekly in the January 12th edition, caught my eye.

The ruling was on whether or not the defendant should have been granted jury instruction on entrapment by the judge during his initial trial.

What stands out in this ruling is how the court viewed his right to have the jury given instructions on entrapment.

First let me quote the court's definition of entrapment:

"The essence of entrapment is the inducement by law enforcement officers or their agents of a person to commit a crime when, but for the inducement, that person would not have committed the crime.

A clear distinction is to be drawn between inducing a person to commit a crime he did not contemplate doing, and the setting of a trap to catch him in the execution of a crime of his own conception.

Because of its significance in determining the origin of the criminal intent, when the defense of entrapment is raised, defendant's predisposition to commit the crime becomes the central inquiry.

....

The defendant's burden to produce credible evidence of entrapment serves to prevent him from obtaining instructions on defenses supported by mere conjecture or speculation but is not intended to be so rigorous as to keep the jury from receiving instructions on and deciding defenses for which supporting evidence exists.

Defense argues that his lack of a history of such conduct, along with deputies' failure to find any evidence of child pornography or prior chats with minors upon their search of defendant's residence, raises the inference that defendant lacked predisposition.

...

In the absence of evidence tending to show both inducement by government agents and that the intention to commit the crime originated not in the mind of the defendant, but with law enforcement officers, the question of entrapment has not been sufficiently raised to permit its submission to the jury.  Where a defendant has not met this initial burden of production, the state need not present any evidence regarding predisposition  Thus, it is the defendant's burden to produce some credible evidence of lack of predisposition"

Here is the kicker:

"A trial court may properly refuse to instruct a jury on entrapment when the defendant required little urging before acquiescing to requests by undercover officers."

Basically what the court is saying is that not having any evidence of prior offenses involving children and the absence of any type of child porn or child erotica is not enough to claim lack of predisposition by itself.  What got the court to rule against this defendant was the fact that he had prior chats with adults of a sexual nature and arranged to meet with another adult for sex.

Additionally, the defendant admitted to having had prior sexual conversations with persons who claimed to be underage.  Coupled with the fact that the defendant did not appear to have any problems talking with the undercover officer who stated several times during the chat that "she was a 14-year old high school student and a virgin... The defendant took the more active role in their conversation and in planning their meeting. "

Entrapment is about two things, intent and predisposition.  Was the defendant predisposed to commit a crime based on prior behavior and actions and did the defendant intend to commit a crime that he conceived in his own mind.

The inference of lack of predisposition cited here due to the lack of law enforcement to find prior history of crimes related to children when they searched his home, supported only one prong of the defense.  And that support crumbled when the defendant admitted to having sexual conversations with other adults on the internet prior, coupled with his admission that he had sexual conversations with minors prior to this offense, even though no record was found to support it.

The second prong broke because he did not show any signs of concern about the offense he was committing even when he was told explicitly that the person he was chatting with was an underage female.

You can look at that like a tug of war.  Who is pulling harder on the rope over the length of the contest?  The officer or the defendant?

As you can see, the entrapment defense is difficult and tricky and the burden of proof lies squarely on the shoulders of the defense.

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