Hard Truths About the Entrapment Defense and Criminal Law

We see this on television shows all of the time:  the perp being led away in handcuffs, screaming:  “I didn’t do it!  I’ve been entrapped!”  But in the real world, more and more terrorism investigations and stings are conducted on would-be terrorists who are foolish enough to do business with an FBI informant.  But what exactly is the entrapment defense in Arizona?  Is it the same in all of the states?

          History of the Entrapment Defense

Prior to 1997, the entrapment defense was a creature of the common law and it was not governed by statute.  However, in response to State v. Soule, 168 Ariz. 134, 811 P.2d 1071 (1991), the Arizona legislature enacted A.R.S. § 13-206 which, in essence, holds that to claim the defense of entrapment, “the person must admit by the person’s testimony or other evidence” the basic elements of the crime charged.  In addition to admitting to the offense, the person must also prove by clear and convincing evidence that:

1. The idea of committing the offense started with law enforcement officers or their agents rather than with the person.
2. The law enforcement officers or their agents urged and induced the person to commit the offense.
3. The person was not predisposed to commit the type of offense charged before the law enforcement officers or their agents urged and induced the person to commit the offense.

A.R.S. § 13-206(B).  The statute goes on to say that “A person does not establish entrapment if the person was predisposed to commit the offense and the law enforcement officers or their agents merely provided the person with an opportunity to commit the offense.”  Law enforcement may use a ruse and conceal their identity from the defendant.

          Hard truths.

The law of entrapment in Arizona is radically different from a majority of the other states and the federal government.  Here are some “hard truths” about Arizona’s entrapment laws.

Truth #1:  Prior acts are admissible.  Usually, at a trial, a person’s “prior bad acts” are not admissible to prove that the person acted in a certain way or broke the law.  However, when the person elects to invoke the entrapment defense, that rule no longer applies, and the State can use a person’s history to prove that the person was “predisposed” to commit the crime.  So, for example, prior acts of drug sales can be used against a person who invokes the entrapment defense against a new charge of sale of narcotics.

Truth #2:  Must admit the elements of the crime.  Arizona is among the minority of states that require the defendant to admit the “substantial” elements of the crime.  A recent case from the Arizona Supreme Court, State v. Gray, No. CR-15-0293-PR, 2016 WL 3390236 (Ariz. June 20, 2016), has affirmed that rule.  Over a vigorous dissent, a majority of the Arizona court held that requiring the defendant to affirmatively admit the elements of a crime before claiming the entrapment defense does not violate the defendant’s Fifth Amendment privilege against self-incrimination.  This result is in stark contrast to the federal courts.  For example, Supreme Court of the United States concluded otherwise in Mathews v. United States, 485 U.S. 58, 62, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988).  In federal court, defendants may argue both that they did not commit the offense, and at the same time, they may contend their commission of the crime should be excused because they were entrapped.  But because Mathews is based on federal statutes, not the federal constitution, states are not required to follow it and Arizona does not.  While some of the lower Arizona courts have expressed frustration with the Arizona rule, and the dissent in Gray echoes that frustration, Gray is now the law of the state and the issue seems settled.  For now.

Depending on your point of view about whether the enthusiasm of law enforcement needs to be curbed, the Gray decision erects a large – perhaps insurmountable – burden on criminal defendants who wish to assert the entrapment defense in Arizona state courts.   DISCLAIMER:  The information you obtain on this page or website is not, nor is it intended to be, legal advice. You should consult with an attorney for individual advice regarding your own situation.