The "Entrapment" Defense in Florida

The defense of "entrapment" was codified by Florida's legislature in Section 777.201 of the Florida Statutes as follows:

1. A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he or she induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.

2. A person prosecuted for a crime shall be acquitted if the person proves by a preponderance of the evidence that his or her criminal conduct occurred as a result of an entrapment. The issue of entrapment shall be tried by the trier of fact.

This form of entrapment which is to be determined by a jury is commonly referred to as "Subjective entrapment". Subjective entrapment cases are ones in which the conduct of law enforcement is not so outrageous as to offend due process principles, but rather conduct that creates a risk of inducing someone to commit a crime who would not have been otherwise predisposed to do so.

"Objective entrapment" on the other hand involves law enforcement conduct so egregious that it offends the "canons of decency and fairness which express the notions of justice - even toward those charged with the most heinous offenses." Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 96 L.Ed. 183 (1952). "Due process is violated when "the conduct of law enforcement is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." Tercero v. State, 963 So. 2d 878, 883 (Fla. 4th DCA 2007). "It is a balancing test; the court must weigh the rights of the defendant against the government's need to combat crime. Bist v. State, 35 So. 3d 936, 939 (Fla. 5th DCA 2010). While the issue of subjective entrapment is to be determined by the trier of fact, objective entrapment is a legal question to be determined by the court, the remedy for which is dismissal of the charge(s).

In a case involving subjective entrapment, the standard jury instructions below should be given to the jury:

Florida Standard Jury Instruction 3.6(j)

The defense of entrapment has been raised. (Defendant) was entrapped if:

1. [he] [she] was, for purpose of obtaining evidence of the commission of a crime, induced or encouraged to engage in conduct constituting the crime of [crime charged or any applicable lesser-included offense], and

2. [he] [she] engaged in such conduct as the direct result of such inducement or encouragement, and 

3. The person who induced or encouraged [him] [her] was a law enforcement officer or a person engaged in cooperating with or acting as an agent of a law enforcement officer, and 

4. The person who induced or encouraged [him] [her] employed methods of persuasion or inducement which created a substantial risk that the crime would be committed by a person other than one who was ready to commit it, and 

5. (Defendant) was not a person who was ready to commit the crime.

Entrapment is not a defense to a crime if (defendant) had the predisposition to commit that crime. (Defendant had the predisposition if before any law enforcement officer or person acting for the officer persuaded, induced, or lured (defendant), [he] [she] had a readiness or willingness to commit (crime charged or any applicable lesser-included offense) if the opportunity presented itself. 

It is also not entrapment merely because a law enforcement officer, in a good faith attempt to detect crime,

1. Provided the defendant the opportunity, means, and facilities to commit the offense, which the defendant intended to commit and would have committed otherwise.

2. Used tricks, decoys, or subterfuge to expose the defendant’s criminal acts.

3. Was present and pretending to aid or assist in the commission of the offense.

On the issue of entrapment, the defendant must prove to you by the greater weight of the evidence that a law enforcement officer or agent induced or encouraged the crime charged. Greater weight of the evidence means that evidence which is more persuasive and convincing. If the defendant does so, the State must prove beyond a reasonable doubt that the defendant was predisposed to commit the (crime charged or any applicable lesser-included offense). The State must prove defendant’s predisposition to commit the (crime charged or any applicable lesser-included offense) existed prior to and independent of the inducement or encouragement. 

“Inducement” is defined as any government conduct creating a substantial risk that an otherwise law-abiding citizen would commit an offense, including persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship. Neither mere solicitation nor the creation of opportunities to commit an offense constitutes inducement.

An informant is an agent of law enforcement for purposes of the entrapment defense.

If you find the defendant was entrapped, you should find the defendant not guilty of (crime charged or any applicable lesser-included offense). If, however, you find that the defendant was not entrapped, you should find the defendant guilty if all of the elements of the charge have been proved.