Entrapment in Texas: A Hard Sell
Updated: May 23
Entrapment is a rarely-used defense in Texas criminal cases for several reasons:
Difficult Standard. "It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment." Establishing this can be quite difficult.
Predisposition: The entrapment defense is not applicable if the defendant had a predisposition to commit the crime. If the prosecution can show that the defendant was willing and ready to commit the offense before the law enforcement officer's intervention, the entrapment defense will likely fail.
Law enforcement tactics: Entrapment typically involves the use of undercover officers or informants who engage in deceptive practices to induce someone to commit a crime. Law enforcement agencies are generally aware of entrapment rules and train their officers to avoid crossing the line into entrapment territory. As a result, genuine instances of entrapment are relatively rare.
Unsympathetic defendants: Entrapment defenses often involve defendants who were engaged in criminal conduct or had criminal intentions. Juries are often unsympathetic to such defendants, and rationalize that the police conduct would not have induced a normal person to commit the crime.
Perception of entrapment: There is a perception among some people that entrapment is a "technicality" defense, allowing guilty individuals to escape punishment. This perception may make juries and judges less receptive to entrapment arguments.
Alternative defenses and confession-and-avoidance: In many cases, other defenses may be more viable and easier to prove, such as challenging the evidence, questioning the credibility of witnesses, or arguing for a lesser charge. Attorneys may opt for these alternative strategies instead of pursuing an entrapment defense. Additionally, entrapment is a confession-and-avoidance defense, meaning that to raise it, the defendant cannot deny committing the crime. This admission can be risky; it weakens other defense strategies that challenge the defendant's guilt. By pursuing an entrapment defense, the defendant undermines other potential defenses, making it a less attractive option in many cases.
In situations where entrapment has genuinely occurred, an experienced criminal defense attorney can help present a compelling case for the defendant but, given these challenges, entrapment is a last-resort defense in Texas criminal cases.
You may feel entrapped, but do you want to admit that you committed the offense in order to argue that you were entrapped to do it?
There are probably better defenses.
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