Colorado Criminal Law and Defenses – Understanding the Defense of Entrapment

Introduction: To fully understand Colorado Criminal Law – you must begin by understanding the crime charged. Then you turn to legally cognizable defenses that you can assert at trial if such defense or defenses exist. What follows is the defense of entrapment – a defenses that Colorado Criminal Law provides as a possibility.

The Colorado Defense of Entrapment – CRS 18-1-709

The commission of acts which would otherwise constitute an offense is not criminal if the defendant engaged in the proscribed conduct because he was induced to do so by a law enforcement official or other person acting under his direction, seeking to obtain evidence for the purpose of prosecution, and the methods used to obtain that evidence were such as to create a substantial risk that the acts would be committed by a person who, but for such inducement, would not have conceived of or engaged in conduct of the sort induced.

Merely affording a person an opportunity to commit an offense is not entrapment even though representations or inducements calculated to overcome the offender’s fear of detection are used. CRS 18-1-709

Colorado Cases Stating The Rules As a Foundation For Understanding The Defense of Entrapment

Entrapment may be asserted as an affirmative defense only to acts that would otherwise constitute an offense and is not applicable to sentencing provisions such as the sentence enhancing provisions of § 18-18-107, which merely impact the degree of punishment imposed.

The defense of entrapment has long been recognized in Colorado when the prosecution, through its agents, in fact, induces, instigates, and causes a criminal offense to be committed.

Detection of crime distinguished from entrapment

Here is the KEY to understanding the defense of entrapment

A suspected person may be tested by being offered the opportunity to transgress the law in such a manner as is usual in the activity alleged to be unlawful.

However, law enforcement officers may not induce persons, who would not otherwise have committed the crime, to violate the law. The former is legitimate “detection” of crime. The latter is “entrapment” to commit the crime in which the officer’s conduct instigates the offense, the commission of which was nonexistent in the mind of the intended victim of the entrapment.

To prove entrapment, the defense must show that the prosecution played the primary role.

The TEST of entrapment focuses on defendant’s conduct

In determining whether the affirmative defense of entrapment exists, the court focuses on the conduct of the defendant. An examination is made of the circumstances surrounding the sale to see whether the officers merely afforded the defendant the opportunity to commit the offense, or whether the defendant had been improperly induced to do something he otherwise would not have done.

Entrapment is a subjective test that focuses on a defendant’s state of mind

While police methods are relevant to the defense of entrapment, police motives are not relevant because they do not impact the subjective state of mind of the defendant. However, such motives may be relevant for the purpose of establishing bias in DEA agents’ testimony. Vega v. People, 893 P.2d 107 (Colo. 1995).

The law includes the subjective test, as the defendant’s predisposition to commit the crime, rather than the conduct of the government agent, …this remains the dispositive factor in determining whether entrapment has occurred.

This section creates a subjective test which is concerned with the state of mind of a particular defendant; it does not set general standards for police conduct. Thus, evidence of a law enforcement agency’s internal reward system generally would not be relevant to whether a particular defendant was entrapped.

To Assert Entrapment – The Defendant Must Admit The Facts Of The Crime

Section requires the defendant to admit committing the acts before being entitled to assert the defense of entrapment. The court did not err in refusing to give an instruction on the defense when the defendant denied committing the acts.

Here Are The Elements of the defense:

(1) The defendant must be a person who, but for the offered inducement offered, would not have conceived of or engaged in conduct of the sort induced;

(2) the defendant must in fact have engaged in the proscribed conduct because he was induced to do so by a law enforcement official or other person acting under his direction, seeking to obtain evidence for the purpose of prosecution, and not as a result of the defendant’s own predisposition;

(3) the methods used to obtain such evidence must have been such as to create a substantial risk that this particular defendant would engage in the sort of conduct induced; and

(4) the methods used must have been more persuasive than merely affording the defendant an opportunity to commit an offense, even when such an opportunity was coupled with representations or inducements calculated to overcome the defendant’s fear of detection.

Predisposition and inducement are inextricably interwoven within the first three elements of the defense.

Existence of any predisposition on the part of the defendant must be determined first; then the extent of any such predisposition must be considered in relation to the character of the inducements to determine whether the second and third elements have been satisfied.

The Prosecution must prove a defendant was NOT entrapped

The prosecution must prove beyond a reasonable doubt that the defendant was not entrapped.

Prosecution may rely solely on the defendant’s predisposition only if they are able to prove that the defendant would have committed the crime even if the police had offered no inducement more persuasive than merely affording the defendant an opportunity to commit the crime.

In reviewing the sufficiency of predisposition evidence, courts may rely upon evidence obtained after the government’s initial contact with the defendant, so long as such evidence is relevant to the defendant’s state of mind as it existed prior to the government’s suggestion of the crime.