Objective Entrapment

Is objective entrapment so dead that people do not even know what it is anymore or is the government purposely ignoring it?  The subjective entrapment defense is defined in Fla. Stat. ch. 777.201 (as shown on the homepage) but it does not say anything about objective/due process entrapment that is guaranteed by the Florida and federal constitutions.  Judicial officials as well as attorneys are forgetting that the statutes do not supersede or abolish the rights enumerated in the constitutions.  Cruz v. State of Florida, 465 So. 2d 516 (1985) set the guidelines for objective entrapment but then the Florida legislators enacted Stat. 777.201 in 1987 (just two years later).  It really makes me wonder and it should make everyone else wonder too why the legislators of Florida (or any other state) would approve of law enforcement officials creating crime.  That is essentially what the objective entrapment test outlined in Cruz does is determine whether or not police officers have created crime for the purpose of enforcing it.

With these things in mind, there is a circular argument in Florida law concerning entrapment.  The standard jury instruction on entrapment reads as follows:

3.04(c)(2)  ENTRAPMENT  Standard Jury Instructions 723 So.2d 123 at 142 (Fla. 1998)
The defense of entrapment has been raised.  Defendant was entrapped if
1.         He was, for the purpose of obtaining evidence of the commission of a crime, induced or encouraged to engage in conduct constituting the crime of , and
2.         He engaged in such conduct as direct result of such inducement or
            encouragement, and
3.         The person who induced or encouraged him was a law enforcement officer or a person engaged in cooperating with or acting as an agent of a law enforcement officer, and
4.         The person who induced or encouraged him employed methods of persuasion or inducement which created a substantial risk that the crime would be committed by a person other than one who was ready to commit it, and
5.         Defendant was not a person who was ready to commit the crime.
            It is not entrapment if  had the predisposition to commit the particular crime.  The defendant had the predisposition if before any law enforcement officer or person acting for the officer persuaded, induced, or lured , he had a readiness or willingness to commit the particular crime if the opportunity presented itself.
            It is also not entrapment merely because a law enforcement officer in a good faith attempt to detect crime:
a.         provided the defendant with the opportunity, means and facilities to commit the offense, which the defendant intended to commit and would have committed otherwise.
b.         used tricks, decoys or subterfuge to expose the defendant's criminal acts.
c.         was present and pretending to aid or assist in the commission of the
            On the issue of entrapment, the defendant must prove to you by the greater weight of the evidence that a law enforcement officer or agent induced or encouraged the crime charged.  Greater weight of the evidence means that evidence which is more persuasive and convincing.  If the defendant does so, the State must prove beyond a reasonable doubt that the defendant was predisposed to commit the particular crime.  The state must prove defendant’s predisposition to commit the crime existed prior to and independent of the inducement or encouragement.
            An informant is an agent of law enforcement for purposes of the entrapment defense.  If you find that the defendant was entrapped, you should find the defendant not guilty of the crime charged.  If, however, you find that the defendant was not entrapped, you should find the defendant guilty if all of the elements of the charge have been proved.
However, this jury instruction focuses on the predisposition of the defendant and whether or not law enforcement officials induced or persuaded him/her to commit the offenses charged.  Furthermore, it also intentionally ignores the objective entrapment defense when it says that it is not entrapment if the agent of the law “was present and pretending to aid or assist in the commission of the offense”.  Having said these two things, what if the crime itself involves two consenting “criminals”?  What if the only way to have a crime is for two people to consent in the activity?  The truth is, the entrapment defense is available to everyone and not just people with clean criminal records.  Law enforcement officials need to have a reason to conduct a sting and that reason is crime.  They cannot just randomly conduct stings and claim that it is proactive law enforcement because this creates a conundrum when dealing with entrapment.  Finally, it is not the jury’s duty to rule on entrapment as a matter of law, the current instruction violates the due process rights of the accused, and the jury instruction that is currently given does not account for due process at all.

Law enforcement officials are entrapping innocent people in internet stings because they are portraying themselves as willing participants in sexual communications and then lie to the public by saying that the men that were arrested were caught red handed preying on children.  The objective entrapment defense still exists and it is up to the trial judge to determine if entrapment has occurred and not the jury.  Therefore, not only do internet stings violate the due process rights of the accused during an internet sting but they also violate that right in the event a case actually makes it to trial.  It is up to the judge to decide that crime has been created and not to the jury.  Please thoroughly read Munoz v. State presented on the case law links of this blog and understand how the law has limited the entrapment defense contrary to the constitution.