If your arrest was the result of a sting operation, you may be thinking, “Entrapment!” Not so fast. In Texas, entrapment is a commonly misunderstood defense. You cannot argue entrapment simply because police were involved in getting you to commit a crime. So, when does entrapment apply?

What is Entrapment?

Entrapment is an affirmative defense that absolves you from criminal liability if police lure you to commit a crime. Texas Penal Code Section 8.06 states that entrapment is a defense if:

1. You engaged in the conduct (crime) that is charged;

2. Because you were induced to do so by a law enforcement officer;

3. The law enforcement officer used persuasion or other means; and

4. Those means were likely to cause you to commit the crime.

If your attorney raises an entrapment defense, he or she must prove each of these elements.

What constitutes entrapment?

Texas law is clear in that conduct merely affording a person an opportunity to commit the offense does not constitute entrapment. Entrapment can only be a successful defense if you can show that police did more than just provide you with an opportunity to commit a crime. Rather, you must have been induced to commit the crime.

What’s the difference? Take a look at the following examples:

Example A: Tim goes online and lands on a website where he can pay for sex. He finds a phone number and sends a text message to initiate the transaction. The person on the other line subsequently texts back, and they arrange to meet that night. When Tim arrives at the agreed upon location, he is met by law enforcement and arrested for soliciting prostitution.

Example B: Ben sets up his profile on an online dating website. He is contacted by someone who asks if he wants to get together that night. This person says that she will have sex with Ben for money. Ben says no, he’s not into that. But after repeated text messages, and promises of free food and alcohol, Ben concedes. He is arrested when he arrives to the location.

In example B, Ben was manipulated by law enforcement to engage in prostitution. Contrast this to example A, wherein Tim was never induced to commit a crime. The fact that the officer was the one texting Tim is irrelevant since he was already prepared to commit the crime.

What is persuasion by law enforcement?

Whether or not police used “persuasion or other means” to cause you to commit a crime is a question of fact for the jury. The jury will look at what actions the police took and determine whether a reasonable person in a similar situation would also have been persuaded to commit a crime.

Unlawful persuasion may look like:

How do I prove entrapment?

Entrapment is an affirmative defense, which means that you must first acknowledge that you engaged in the unlawful activity. You must explain that there is a legal justification for your behavior that excuses you from criminal liability. As such, an entrapment defense involves proving you were the victim of police misconduct. You must present evidence to establish that you only engaged in the criminal activity because you were tricked by police.

Some factors that can be used to prove your innocence include your lack of criminal record, lack of history committing similar acts, and positive testimony from character witnesses. Any evidence to show you are a normal law-abiding citizen and would not typically engage in this behavior will help your defense.

How can I tell if I’ve been entrapped?

There is a fine line between lawful exercise of police authority and an improper use of persuasion. Thus, it may be difficult to discern when an entrapment defense may apply.

If you’ve been arrested and believe it was due to police misconduct, it is important to speak to an experienced attorney. Your attorney can look at all the evidence in your case and determine whether entrapment will be a viable defense. If you have questions about your case, call my office today.

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