The Elements of Entrapment

When law enforcement influences a person to commit a crime, this action can constitute what is known as entrapment. In Texas, entrapment is a defense to the commission of a crime.

Entrapment typically occurs when a law enforcement officer uses undue influence — through coercion, threats, fraud, etc. — to get someone to commit a crime. According to Texas law, entrapment is not a defense if a law enforcement officer merely provided the opportunity for someone to commit a crime. It must be proven that the person did not have any intention of committing a crime and only committed it because he or she was coerced or persuaded to do so by a law enforcement officer.

Texas uses an objective standard to determine if entrapment has occurred. The objective standard is one where a jury must determine whether a law enforcement officer’s actions would have persuaded a reasonable person to commit a crime. Other states use the subjective standard, which requires a jury to determine whether the person was already predisposed to commit a crime and if this was the primary motivation rather than law enforcement’s actions.

Entrapment is an affirmative defense to the commission of a crime, which means that the defendant must prove that he or she would not have committed the crime without the influence of law enforcement. This proof is not beyond a reasonable doubt, but rather by preponderance of the evidence, meaning that the evidence weighs more heavily in favor that entrapment occurred.

Sting operations conducted by law enforcement do not necessarily provide an entrapment defense. The success of such a defense will rest on whether opportunity or persuasion was the primary characteristic in the interaction between law enforcement and the defendant.

The Cogdell Law Firm is a boutique law firm focusing on large, complex business and criminal financial-related litigation, including white collar criminal defense, securities fraud, health care fraud investigation, criminal appeals and state criminal defense. When results matter most, contact Dan Cogdell at (713) 426-2244 or