NCJ Number
34441
Journal
Minnesota Law Review Volume: 60 Issue: 2 Dated: (JANUARY 1976) Pages: 163-274
Date Published
1976
Length
112 pages
Annotation
THIS ARTICLE EVALUATES TWO OPPOSING VERSIONS OF THE DEFENSE OF ENTRAPMENT IN CASES INCOLVING UNDERCOVER POLICE SOLICITATION OF CRIME.
Abstract
THE FEDERAL 'SUBJECTIVE' APPROACH FOCUSES UPON THE CULPABILITY OF THE PARTICULAR DEFENDANT, ASKING WHETHER HE WAS PREDISPOSED TO COMMIT CRIMES OF THE NATURE CHARGED. THE 'HYPOTHETICAL-PERSON' APPROACH FOCUSES UPON THE INDUCEMENTS USED BY POLICE AGENTS AND WHETHER THESE INDUCEMENTS WERE LIKELY TO CAUSE A NONDISPOSED PERSON TO COMMIT THE CRIME CHARGED. THE AUTHOR FIRST DESCRIBES THE TWO DEFENSES IN DETAIL, EMPHASIZING HOW THEY DEAL WITH PREDISPOSITION AND AGENT MISCONDUCT. BASED ON THIS DESCRIPTION, HE THEN ARGUES THAT THE FEDERAL DEFENSE, WITH SOME MODIFICATIONS, IS PREFERABLE TO THE HYPOTHETICAL-PERSON DEFENSE SINCE THE HYPOTHETICAL-PERSON DEFENSE CREATES A GREATER RISK OF UNJUST TREATMENT OF INDIVIDUAL DEFENDANTS THAN DOES THE FEDERAL DEFENSE. HE FURTHER MAINTAINS THAT THE POSSIBILITY OF BENEFICIAL EFFECTS UPON CONDUCT OF POLICE AGENTS IS NOT STRONG ENOUGH TO JUSITFY TAKING THIS RISK. IN THE PROCESS, THE AUTHOR RESPONDS TO VARIOUS CRITICISMS OF THE FEDERAL TEST NAD DISCUSSES HOW THE BURDEN OF PROOF SHOULD BE ALLOCATED AND WHETHER THE DEFENSE WHOULD BE THE PROVINCE OF THE JUDGE OR THE JURY.