It is an affirmative defense to a criminal prosecution that the defendant engaged in the alleged conduct because the defendant was induced by a law enforcement officer or an agent acting in knowing cooperation with such officer to engage in the proscribed conduct when the defendant was not otherwise disposed to do so.52 This defense concedes the commission of the act charged but claims it should not be punished because of the wrongdoing of the government.53 The purpose of the defense is to deter police misconduct.54
In an entrapment case, the trier of fact must focus on the predisposition of the defendant to commit the particular crime and on the conduct of the government agent.55 The proper time frame for establishing the predisposition of the defendant is the time period extending from just before the government’s solicitation to just before the defendant’s commission of the crime.56 In some circumstances, the post-crime activity of the defendant may also be relevant to a determination of predisposition.57 As to the government’s conduct, it is not entrapment when a government agent merely affords an opportunity for the defendant to commit the crime. Instead, there must be evidence that the government lured the defendant to commit the crime.58 Evidence of inducement includes suggestion that the crime be committed, providing some or all of the instrumentalities or facilities needed to commit the crime, actively participating in the commission of the crime or providing varying degrees of incentive, persuasion, coercion or any combination.59
Even if it is determined that a defendant is predisposed to commit the crime, a conviction may not stand if the government’s conduct was so outrageous as to violate due process or if the police conduct went beyond of what was necessary to sustain the entrapment defense. Such a determination will be fact-specific, taking into consideration the nature of the crime and the means available to the government to combat it.60
The defense of entrapment is unavailable where the offense involves causing or threatening physical injury to a person other than the one perpetrating the entrapment.61
52. 11 Del. C. § 432(a).
53. 11 Del. C. § 432(a); Atkins v. State, 523 A.2d 539, 546 (Del. 1987); Crosby v. State, 295 A.2d 708, 711 (Del. 1972).
54. State v. Brown, 287 A.2d 400, 403 (Del. Super. 1972), aff’d, 310 A.2d 870 (Del. 1973); 11 Del. C. § 432, commentary.
55. Atkins v. State, 523 A.2d 539, 546 (Del. 1987); Harrison v. State, 442 A.2d 1377, 1385 (Del. 1982).
56. Atkins v. State, 523 A.2d 539, 547 (Del. 1987); Harrison v. State, 442 A.2d 1377, 1386 (Del. 1982).
57. Harrison v. State, 442 A.2d 1377, 1368 n.8 (Del. 1982).
58. Dobrosielski v. State, 311 A.2d 875, 876 (Del. 1973); Granville v. State, 287 A.2d 652, 655 (Del. 1972); Halko v. State, 209 A.2d 895, 899 (Del. 1965).
59. Harrison v. State, 442 A.2d 1377, 1387 (Del. 1982).
60. Harrison v. State, 442 A.2d 1377, 1386-87 (Del. 1982).
61. 11 Del. C. § 432(b).
© 2010 David L. Finger