Entrapment is an affirmative statutory defense to a crime in Georgia, which means that it is built right into the state code. Entrapment occurs when an officer or agent of the state persuades a person to commit a crime he or she would not have otherwise committed. Entrapment has three elements: First, the idea of the crime must originate with the officer. Second, the crime must be induced by “undue” persuasion. Third, the defendant must not be predisposed to commit the crime.
The statute is rather lengthy, but reads in relevant part that “A person is not guilty of a crime if, by entrapment, his conduct is induced or solicited by a government officer or employee, or agent of either, for the purpose of obtaining evidence to be used in prosecuting the person for commission of the crime. Entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee, or with an agent of either, and he, by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.” O.C.G.A. 16-3-25.
The Challenge of an Entrapment Defense
Entrapment defenses are difficult to prevail on because the defendant must show that he was not predisposed to commit the crime. And the fact that someone committed a crime, may imply that they were predisposed to do it. For example, an entrapment defense would fail if a drug dealer was persuaded to sell drugs to an officer on an occasion when he did not intend to sell any drugs. His being a drug dealer normally would make him predisposed to commit the crime, irrespective of the crime being the officer’s idea.
In the alternative, a good case of entrapment may occur when an undercover officer talks a person into selling him drugs who has never sold drugs before. For example, the undercover officer tells an individual that he is going through withdrawals and may die if the individual does not get him the drugs. In this example, the three elements would likely be met: the idea of the crime didn’t originate with the defendant, the officer arguably used “undue” persuasion, and the defendant was not predisposed to commit such a crime.
Burden of Proof
The person seeking an entrapment defense must first make out a basic (or prima facie) case for entrapment. After prima facie case is made, the state must prove that the defendant was not entrapped beyond a reasonable doubt. The defendant has the initial burden, but then the burden shifts to the state.
Interestingly, a defendant may both assert the defense of entrapment and claim that he did not commit the act resulting in the crime. For example, the Defendant argues that he never sold drugs to a police officer, but that if the jury finds that he did, he only did so by means of entrapment.
If you think you may have an entrapment defense to a crime, contact our office today for a free consult and case analysis!