What Does Entrapment Mean in Law?

Everyone thinks they understand entrapment. The police tricked me. They made me do it. I never would have committed this crime without them. These phrases roll off the tongue of every defendant who got caught in a sting operation. And almost none of them have an entrapment defense. That's the uncomfortable truth nobody explains until you're already facing charges: the legal test for entrapment isn't about what the police DID to you. It's about what YOU would have done anyway. The moment you said yes to their offer - regardless of how elaborate the setup, how persistent the pressure, how manufactured the opportunity - courts say you proved your predisposition. The defense defeats itself the instant you take the bait.

Welcome to Spodek Law Group. Our goal is to explain how entrapment actually works in the legal system, not the Hollywood version you've seen on television. Todd Spodek has handled cases where clients walked into our office convinced they had the perfect defense. The police created the entire crime. They supplied the opportunity, the means, the target. Surely that's entrapment? Almost never. What follows is what we wish every client understood before they relied on a defense designed to fail.

The legal system has constructed a test that sounds protective but functions as a trap. Understanding why requires looking at the actual legal standard courts apply - and recognizing that this standard was built to favor the government, not the defendant.

The Defense Everyone Thinks They Have

The public understanding of entrapment goes something like this: if the police created the crime, if they wouldnt of committed it without law enforcement involvement, then the defendant goes free. This sounds reasonable. It sounds like basic fairness. And its almost completly wrong.

Hollywood portrayals reinforce this misconception. The detective tricks the suspect into confessing. The undercover officer pressures an innocent person into wrongdoing. The hero walks free when the setup is revealed. Thats not how it works in actual courtrooms. The legal definition of entrapment has almost nothing to do with whether police tricked you.

What most people dont understand is that entrapment is an affirmative defense. This means the defendant must admit they committed the crime before they can argue entrapment. Read that again. You have to confess to the jury that yes, you did the thing your charged with, but the government made you do it. This is an all-or-nothing gamble. If the jury rejects your entrapment defense, youve already admitted guilt. Theres no fallback position.

The legal definition of entrapment has two versions that exist in diffrent jurisdictions. The subjective test, used in federal courts and most states, focuses on the defendant's predisposition. The question isnt "did police induce you" but "were you ready and willing to commit this type of crime?" The objective test, used in fewer jurisdictions, asks whether police conduct would have caused a normaly law-abiding person to commit the crime. But heres the kicker - even in objective test jurisdictions, courts rarely find entrapment.

The burden of proof adds another layer of difficulty. Once the defendant raises entrapment, they must present some evidence of government inducement. Then the burden shifts to the prosecution to prove predisposition beyond a reasonable doubt. This sounds defendant-friendly. In practice, prosecutors have no trouble meeting this burden becuase they point to the one thing every sting defendant has in common: they said yes.

What constitutes "inducement" versus "opportunity" often comes down to judicial interpretation. Courts have found that repeated requests, appeals to sympathy, offers of unusual profit, and even pressure from undercover agents dont necessarily constitute inducement if the defendant ultimately agreed. The line between inducement and opportunity shifts depending on the jurisdiction, the judge, and often the type of crime involved. Drug cases get treated diffrent from terrorism cases get treated diffrent from bribery cases. The inconsistency works against defendants becuase they cant predict which standard will apply to their situation.

The Test That's Rigged Against You

The subjective test - the one federal courts use - creates a near-impossible standard for defendants. Heres how it actualy works in practice.

The test has two prongs. First, was there government inducement? Second, was the defendant predisposed to commit the crime? On paper, both prongs matter. In reality, the predisposition prong swallows everything.

Most defendants hear "subjective test" and think it means the court will consider there subjective experience - how they felt pressured, how the situation seemed to them, what alternatives they percieved. Thats not what subjective means here. The subjective test refers to examining the defendants subjective state of mind regarding there willingness to commit crimes. Its not about police behavior. Its about your character. The very name of the test reveals its bias - your subjective criminal tendencies are what matters, not there objective misconduct.

Government inducement sounds like it should be a real protection. Police must do something to encourage the crime beyond merely providing an opportunity. But courts interpret "opportunity" extremly broadly. An undercover officer offering to sell drugs? Thats just opportunity. An informant asking if someone wants to make money through fraud? Opportunity. A fake terrorist plot presented to vulnerable targets? Still just opportunity.

The predisposition inquiry is were the defense falls apart. Courts look at wheather the defendant was "ready and willing" to commit this type of crime. And heres the trap - the moment you agreed to participate, courts say you demonstrated your predisposition. Your "yes" proves you were the type of person who would say yes. The circular logic is built into the test.

At Spodek Law Group, weve seen this pattern destory defenses that seemed rock-solid on first impression. The police manufactured everything. But the defendant still said yes. And thats enough.

0.08% - And Almost Never Works

Lets talk numbers. Becuase the statistics reveal just how rarely this defense succeeds.

According to academic research published in the University of Pennsylvania Law Review, entrapment is raised in aproximately 0.08% of criminal cases - and "to little avail." Thats less than one case in a thousand even attempting this defense. And of those who try, almost all fail.

Why do so few defendants even attempt the defense? Becuase experienced criminal defense attorneys know the odds. They see the case law. They understand how judges actualy rule on these motions. And they advise clients accordingly - entrapment sounds good in conversation, but it almost never survives contact with a courtroom. The gap between public perception and legal reality couldnt be wider.

FBI data from 2006 to 2010 shows only 22 successful federal entrapment defenses nationwide. Twenty-two cases in five years, out of hundreds of thousands of federal prosecutions. The defense that everyone thinks protects them basicly dosent exist in practice.

A survey of defense attorneys called entrapment "judicially unpopular" and recommended it only "in desperate circumstances." Think about what that means. The lawyers who actualy handle these cases - the practitioners who know the system from inside - view entrapment as a desperation move, not a viable strategy.

In terrorism cases specificaly, entrapment has "universally failed" as a defense despite FBI manufacturing plots from start to finish. Over 200 people have been convicted in FBI counterterrorism stings since 9/11. Not a single successful entrapment defense in terrorism prosecutions. The pattern is consistent: government manufactures crime, defendant participates, defendant loses.

The terrorism context deserves special attention becuase it shows how far the government can go. FBI informants have been documented targeting vulnerable individuals - people with mental illness, people struggling financialy, people on the margins of society. These informants provide the ideology, the plan, the fake weapons, the transportation, and the opportunity. The defendant provides only there agreement. And that agreement seals there fate.

Thats the reality. The defense exists in theory. In practice, its a statistical ghost.

The Trap Within the Trap

Heres were it gets even worse. Raising an entrapment defense dosent just require admitting guilt. It opens your entire criminal history to the jury.

Under the subjective test, predisposition can be proven through character evidence. This means prosecutors can introduce your prior arrests, prior convictions, prior bad acts - evidence that would normaly be inadmissable. The moment you claim entrapment, the jury hears about every mistake you've ever made.

Think about the psychology here. Your telling a jury you were induced into committing a crime. And then the prosecutor parades your criminal record in front of them, arguing that your history proves you were "ready and willing" all along. The defense contains its own poison pill.

This is why entrapment is a desperation defense. Your not just betting on the jury believing you were induced. Your betting they'll believe you were induced despite hearing about your past crimes. The odds are stacked against you twice over.

Todd Spodek always explains this dynamic to clients who come in convinced they have an entrapment case. The defense that sounds perfect on the surface often destroys itself during trial. Your past becomes proof of your predisposition. Your agreement becomes proof of your character. And the government's manufacturing becomes irrelevent.

Consider the mechanics of how this plays out in front of a jury. Your attorney argues that police induced you into commiting a crime. Then the prosecutor stands up and recites your prior arrests. Maybe a drug charge from ten years ago. Maybe an assault charge that was eventualy dismissed. Maybe just an arrest record with no convictions at all. None of this would normaly be admissable. But becuase you raised entrapment, the door opens. The jury hears about incidents that have nothing to do with the current charge - and forms opinions about what kind of person you are.

This is the trap within the trap. The defense mechanism itself becomes the weapon used against you.

$100,000 to Manufacture Terrorists

The Newburgh Four case shows exactly how far government can go and still not create entrapment. This case should disturb anyone who believes the legal system protects against manufactured crimes.

In 2009, the FBI paid an informant nearly $100,000 to create a fake terrorist plot from scratch. The informant - a convicted con artist - recruited four men from Newburgh, New York. These men were unemployed, poor, and struggling. The informant offered them $250,000 each to participate in a plot to bomb synagogues and shoot down military planes.

Heres what the FBI provided through there informant: the idea for the plot, the targets, the fake bombs, the fake missiles, the cars, the equipment, and the financing. The defendants provided nothing but there agreement to participate.

The Second Circuit Court of Appeals described it bluntly: the FBI "inspired the crime, provoked it, planned it, financed it, equipped it, and furnished the time and targets." Every element of the crime was manufactured by the government.

The trial judge called the defendants "hapless, easily manipulated and penurious petty criminals." She noted they had no connections to terrorism, no ideological motivation, and no means to carry out any attack without government assistance. One defendant was struggling with drug addiction. Another was mentally ill.

They still got convicted. The entrapment defense failed. These men served over a decade in federal prison for a crime that existed only becuase the FBI created it.

The appeals court acknowledged everything the government did. They didnt dispute that the FBI inspired, planned, and financed the operation. They didnt dispute that the defendants were impoverished and easily manipulated. They didnt dispute that the scheme had no chance of success without government resources. And they upheld the convictions anyway.

Why? Becuase the defendants agreed to participate. Thats the beginning and end of the predisposition analysis under the subjective test. It dosent matter that you would never have encountered this opportunity without the FBI. It dosent matter that you lacked the means, connections, or sophistication to act on your own. What matters is that when the government-paid informant offered you $250,000 to join a fake terrorist plot, you said yes.

If manufacturing an entire terrorist plot with fake weapons and $100,000 in government money doesnt constitute entrapment, what does? The answer, according to federal courts, is almost nothing.

The Rare Exceptions - And What Made Them Different

Entrapment defenses do ocasionally succeed. Understanding why helps explain why they usualy fail.

Jacobson v. United States (1992) is the Supreme Court case defendants cite most often. Keith Jacobson ordered child pornography after 26 months of government inducement. Twenty-six months. The postal service and customs sent him mailings from five fake organizations, surveyed him about his attitudes, and repeatedly solicited him before he finaly ordered illegal material.

The Supreme Court found entrapment in a 5-4 decision. The key: the government had "implanted" the criminal disposition rather than revealed a pre-existing one. Jacobson had ordered legal materials depicting adults before the law changed, but there was no evidence he was predisposed to order child pornography. The government had to work for over two years to get him to commit a crime.

Sherman v. United States (1958) involved a government informant who repeatedly pressured a recovering drug addict to obtain drugs. The informant exploited Sherman's vulnerability, playing on their supposed friendship and his addiction struggles. The Supreme Court overturned the conviction.

Notice whats special about these cases. Jacobson required 26 months of continuous government effort - and the decision was still 5-4. Sherman involved exploitation of addiction vulnerabilities. These are extreme outliers, not the normal pattern.

The Jacobson case is particuarly instructive. Before receiving the government mailings, Jacobson had ordered legal material depicting adults. The law changed after his order, making that category of material illegal. The government then spent over two years sending him mailings from fictitious organizations, surveying his attitudes, and soliciting him to order illegal material. The Supreme Court found that the government had "implanted" the criminal disposition rather than merely revealed one that existed.

But look at what it took to win. Twenty-six months. Five fake organizations. Surveys. Repeated solicitations. A defendant with no prior record of the specific conduct. And it was still a 5-4 decision - one vote away from losing.

The lesson from Spodek Law Group's perspective: entrapment can work when government conduct is extraordinarily persistent AND the defendant shows no independent predisposition. Both elements must be present. And even then, success isnt guarenteed.

What You Actually Need to Know

If your facing charges from a sting operation, heres the practical reality.

First, entrapment is probly not your defense. This isnt pessimism - its pattern recognition. The statistics show this defense fails in over 99% of cases where its raised. Your attorney should explore every possible defense, but building your entire strategy around entrapment is usualy a mistake.

Second, if entrapment is your only option, understand the gamble. Your admitting guilt. Your opening your criminal history. Your betting everything on convincing a jury that despite saying yes to the crime, you werent predisposed to commit it. Thats a hard sell.

Third, the strength of any defense depends on understanding what actualy happened. This requires independent investigation - not just accepting the government's version of events. Sometimes what looks like a simple sting operation has suppression issues, constitutional violations, or other problems that matter more then entrapment.

Fourth, timing matters. The earlier you get legal help, the more options exist. By the time most people realize they need a lawyer, theyve already made statements, waived rights, and created evidence the government will use against them.

Fifth, document everything. If you beleive you were induced into criminal activity, the specifics matter enormously. How many times were you approached? What exactly was said? What pressure was applied? What inducements were offered? This documentation becomes critical if entrapment is ultimatly raised.

Sixth, understand what your actualy defending against. The question isnt wheather police manufactured the crime. Its wheather a jury will beleive you were not predisposed - despite saying yes to the offer, despite any prior record that gets introduced, despite the prosecutors argument that your agreement proves your character.

Spodek Law Group has handled federal cases where clients were convinced entrapment was there answer. Sometimes we found better defenses. Sometimes we negotiated outcomes that avoided the entrapment gamble entirely. Sometimes the best strategy was acknowledging the limits of the defense and focusing on other factors.

Call us at 212-300-5196 before you decide entrapment is your path forward. The consultation is free. The mistake of relying on a defense designed to fail isnt. And the window for building an effective defense strategy - wheather it involves entrapment or not - closes faster then most people realize.

What practitioners know that most clients dont: the question isnt wheather police manufactured the crime. Its wheather you can prove you would have walked away. And the moment you said yes, that proof becomes nearly impossible.