NCJ Number
46705
Journal
Duquesne Law Review Volume: 16 Issue: 2 Dated: (1977-1978) Pages: 157-166
Date Published
1977
Length
13 pages
Annotation
THE ADOPTION OF THE OBJECTIVE APPROACH TO THE ENTRAPMENT DEFENSE, INCORPORATED IN THE MODEL PENAL CODE, BY PENNSYLVANIA IS DISCUSSED.
Abstract
THE SUBJECTIVE THEORY OF ENTRAPMENT, FOCUSING HEAVILY UPON THE CULPABILITY OF THE PARTICULAR DEFENDANT AND HIS READINESS TO COMMIT THE PARTICULAR OFFENSE, IS THE ONE ADOPTED BY THE MAJORITY IN SUPREME COURT OPINIONS. THE OBJECTIVE APPROACH JUDGES THE ACTIONS OF THE ENTRAPMENT AGENT RATHER THAN DEFENDANT'S PREDISPOSITION. THE PENNSYLVANIA CRIMES CODE PROVIDES THAT A PUBLIC LAW ENFORCEMENT AGENT PERPETRATES AN ENTRAPMENT IF HE EMPLOYS METHODS OF PERSUASION OR INDUCEMENT WHICH CREATE A SUBSTANTIAL RISK THAT AN OFFENSE WILL BE COMMITTED BY PERSONS OTHER THAN THOSE WHO ARE READY TO COMMIT IT OR BY MAKING KNOWINGLY FALSE REPRESENTATIONS DESIGNED TO INDUCE THE BELIEF THAT THE CONDUCT IN QUESTION IS NOT PROHIBITED. IF CAUSING OR THREATENING BODILY HARM IS AN ELEMENT OF THE OFFENSE CHARGED, AND THE PROSECUTION IS BASED UPON SUCH HARMFUL THREATENING CONDUCT TO A PERSON OTHER THAN THE PERPETRATOR OF THE ENTRAPMENT, THAN THE ENTRAPMENT DEFENSE IS EXCEPTED. IT IS SUGGESTED THAT EXCLUSION OF THE DEFENDANT'S INTENT IN A CONSIDERATION OF THE PROPRIETY OF POLICE CONDUCT IN AN ENTRAPMENT MAY NOT BE POSSIBLE, PARTICULARLY IN CASES INVOLVING REPEAT OFFENDERS. ADDITIONALLY THERE ARE NO TANGIBLE GUIDLINES TO DETERMINE WHETHER POLICE CONDUCT WOULD OR WOULD NOT BE SUFFICIENT TO INDUCE THE AVERAGE CITIZEN TO COMMIT A CRIME HE OTHERWISE WOULD NOT HAVE COMMITTED, NOR ARE TYPES OF INDUCEMENTS PROHIBITED BY THE OBJECTIVE STANDARD SUBJECT TO DETAILED BREAKDOWN. ALTHOUGH DUE PROCESS PROVIDES A POSSIBLE DEFENSE FOR A DEFENDANT ENTRAPED BY EXTREME GOVERNMENT INDUCEMENT TACTICS, THIS BECOMES A MOOT POINT UNDER THE OBJECTIVE APPROACH. UNDER THE CODE, THE BURDEN OF PROOF OF ENTRAPMENT FALLS ON THE ACCUSED; HE OR SHE MUST PROVE BY A PREPONDERANCE OF EVIDENCE THAT THE CONDUCT OCCURRED IN RESPONSE TO THE ENTRAPMENT ALTHOUGH AN ASSERTION OF ENTRAPMENT IMPLICITLY ADMITS GUILT, IT APPEARS THAT IT WILL BE POSSIBLE FOR AN ACCUSED TO BOTH RAISE THE ENTRAPMENT DEFENSE AND TO DENY COMMITTING THE OFFENSE. IN GENERAL, THE ISSUE OF ENTRAPMENT IS CONSIDERED A JURY QUESTION; AND GIVEN THE FOCUS ON POLICE CONDUCT, ALMOST ANY EVIDENCE OF POLICE INDUCEMENT IS SUFFICIENT TO RAISE AN ENTRAPMENT ISSUE FOR THE JURY. FINALLY, AN ASSESSMENT OF THE PROPRIETY OF POLICE CONDUCT IN AN ENTRAPMENT WILL BE ALMOST IMPOSSIBLE WITHOUT THE INCLUSION EVIDENCE OF THE DEFENDANT'S PRIOR CRIMINAL ACTIVITY, WHICH IS DEEMED INADMISSIBLE UNDER THE MODEL PENAL CODE. ALTHOUGH IT IS STILL TO EARLY TO JUDGE THE IMPACT OF PENNSYLVANIA'S ADOPTION OF THE OBJECTIVE APPROACH TO ENTRAPMENT DECISIONS, IT IS CONCLUDED THAT THE MODEL PENAL CODE HAS DONE LITTLE TO IMPROVE PROBLEMS OF THE ENTRAPMENT DEFSENSE. NOTES ARE INCLUDED. (JAP)