The Entrapment Legal Defense Strategy in Florida Criminal Defense Cases
Law enforcement officers frequently go undercover to investigate clandestine crimes such as drug dealing, cybercrimes, computer-based crimes, human trafficking, prostitution, illegal gambling, stalking, and harassment, for example. During these investigations, officers might pose as a willing participant in the crime or pose as an eager buyer or purveyor of illegal goods to infiltrate a criminal network operating out of plain view.
Overzealous or inexperienced law enforcement officers can blur the lines between convincing a willing participant to take part in a criminal enterprise and overcoming someone’s will which was not predisposed to take part in criminal behavior. The affirmative defense of entrapment becomes a key strategy for defending cases in which the police had to convince the accused to take part in an unlawful scheme.
The defense of entrapment can extend to occasions when the police resort to deploying confidential informants as well. Law enforcement officers use confidential informants to provide them information and to engage in criminal behavior that is immune from prosecution because the informant is working with the police. Confidential informants work with the police for only one reason: because they have to work with them. Confidential informants work with the police to make money providing information or are working off their criminal charges and accumulating evidence against other criminals in exchange for a reduced sentence.
What is Entrapment in Florida?
Generally speaking under the command of Florida law, a person accused of a crime can win an acquittal of the charges if the police officer’s actions amounted to entrapment. The defense of entrapment entails evidence that the defendant participated in a criminal act after receiving encouragement or inducement by a police officer or an agent of the police to gather evidence of the crime charged. The law enforcement officer or the agent of law enforcement must have used methods of persuasion that created a substantial risk that the person would commit the crime even though he or she was not ready to commit the crime. Lastly, the accused must not be predisposed to commit a criminal act like the one for which he or she is now charged.
Entrapment is both a statutory and a constitutional defense in Florida. Section 777.201(1) of the Florida statutes defines entrapment as an affirmative defense to criminal charges when a police officer, informant, or agent of the police, by inducing or encouraging the commission of a crime by persuading the defendant or inducing another to commit a crime or creating a substantial risk that another will commit a crime which is not otherwise willing to commit the unlawful act. The statutory defense is known in Florida law as “subjective entrapment.”
Subjective entrapment under Florida Statue §777.201(1) has three elements that the defendant must satisfy to argue the defense to a jury. The first element, or prong, of subjective entrapment, refers to the person who induced the accused to commit the criminal offense charged. The person must be a sworn law enforcement officer acting under the color of authority, or an agent of the police like a confidential informant, or even a named informant to satisfy the first element of subjective entrapment.
Next, the accused must show some evidence that he or she was not “predisposed to commit the crime.” An individual is predisposed to commit a criminal act when he or she is waiting for the right opportunity or was ready, willing, and able without undue persuasion or coercion.
Once the defense presents some evidence of the first two elements of the subjective entrapment defense, the law shifts the burden to the prosecution team to prove, beyond a reasonable doubt, that the defendant held a predisposition to commit the criminal offense.
The prosecutor enjoys wide leeway to disprove the defendant’s entrapment defense. In a criminal trial, the prosecution is forbidden to try to admit evidence of bad acts of the defendant or evidence of the defendant’s criminal character except in limited circumstances and only with the permission of the judge. The prosecution cannot use the defendant’s prior criminal record just to argue that the accused is guilty because he or she acted in conformity with his or her bad character. However, the state’s attorney can use the defendant’s prior criminal history to show that he or she has a predisposition to commit the crimes alleged.
The third prong of the subjective entrapment defense calls upon the judge to make a ruling on the viability of the entrapment defense as a whole. The judge must decide if the jury can hear an argument on the entrapment defense or whether the prosecution has failed to refute the defendant’s argument and, therefore, the defendant is entitled to the benefit of an acquittal.
Constitutional entrapment is the second theory of entrapment recognized by Florida law. Constitutional entrapment is otherwise known as “objective entrapment.” When advancing a constitutional entrapment defense, the accused will argue that the conduct of the police, objectively, was so egregious that the Florida Constitution requires dismissal of the criminal charges because the defendant’s rights to due process were violated by police conduct. The judicial inquiry focuses solely on the actions of the police and their agents and not on the defendant. Consequently, the defendant has no obligation to show that he or she was not predisposed to commit the unlawful acts alleged.
Entrapment Defense Limitations in Florida Criminal Trials
Admitting that the defendant committed the crime alleges if the most significant limitation, or risk, when asserting an entrapment defense. Arguing entrapment precludes arguing any other defense tactic such as alibi, mistaken identity, third-party culprit, and the like. Therefore, the defendant must be “all in” on the entrapment defense. Otherwise, the defense will not work. The strategy is risky because the defendant will be convicted if the entrapment defense fails. Notwithstanding, the risk could well be worth the reward if the defendant wins an acquittal.
The focus of the trial in an entrapment case becomes the informant’s or officer’s behavior when trying to convince the defendant to commit the crime. The most compelling evidence of entrapment may be found when the informant tries to “ratchet up” the incentive to commit the act. The informant could offer something of value or prey upon the defendant’s vices or emotional weaknesses to break the will of the accused and convince him or her to commit the crime alleged.