Wednesday, July 21, 2021

Well, Maybe...

Entrapment:

 Certain criminal offenses, because they are consensual actions taken between and among willing parties, present police with difficult investigative problems. Thus, in order to deter such criminal behavior, police agents may “encourage” persons to engage in criminal behavior, such as selling narcotics or contraband, or they may may seek to test the integrity of public employees, officers or public officials by offering them bribes. In such cases, an “entrapment” defense is often made, though it is unclear whether the basis for the defense is the Due Process Clause, the supervisory authority of the federal courts to deter wrongful police conduct, or merely statutory construction (interpreting criminal laws to find that the legislature would not have intended to punish conduct induced by police agents).

The Court has employed the so-called “subjective approach” in evaluating the defense of entrapment. This subjective approach follows a two-pronged analysis. First, the question is asked whether the offense was induced by a government agent. Second, if the government has induced the defendant to break the law, “the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.” If the defendant can be shown to have been ready and willing to commit the crime whenever the opportunity presented itself, the defense of entrapment is unavailing, no matter the degree of inducement. On the other hand, “[w]hen the Government’s quest for conviction leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would never run afoul of the law, the courts should intervene.”

This is not even necessarily the precise analysis a trial court would follow if presented with the facts of the kidnap conspiracy.  The question in lay terms seems to me to be: "How much urging did you need to do something so stupid?"  And in this case, did the urging come from the FBI, or from the 45th POTUS? (That's actually been raised as a defense in the 1/6 cases, though not as a entrapment defense.) It kinda comes down to this: 

As in most matters of criminal law, it's a question of intent.  Did you intend to commit the crime; or did the government intend to convince you to commit the crime?

The newspaper narrative that "Well, now it looks like entrapment..." is as false a narrative as the one that Trump won the 2020 election.  You might just as intelligently say "It looks like the sound of an oboe." Sure, there are degrees of damage in the falsehoods, but one as as fake as the other, and based just as much on a willful misunderstanding, or just willful ignorance (what, a journalist can't ask a lawyer if that fits the legal definition?).

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