Entrapment involves commission of a crime with active participation by a law enforcement official, or by someone acting at the direction of a law enforcement official. The law enforcement official (or agent) induces the person to commit an offense. This inducing may occur in either of two ways. In the first way, the law enforcement official (or agent) assures the person that the activity in question is, in fact, legal. In the second way, the law enforcement official (or agent) persuades the person to commit the offense. For an entrapment defense based upon this second way to succeed, the person is required to prove that, absent the persuasion, he would not have committed the offense. Entrapment is a legal defense to both federal and New Jersey criminal charges.
Entrapment Under Federal Law
Under federal law, the entrapment defense arises from the “common law.” That is, no federal statute establishes the federal entrapment defense. Rather, the federal entrapment defense comes from decisions made by federal judges in federal courts. The United States Supreme Court decision that recognized the entrapment defense as a matter of federal law came over eighty years ago. It was Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932).
Entrapment Under New Jersey Law
New Jersey now defines the entrapment defense by statute. The specific New Jersey entrapment statute is N.J.S. 2C:2-12. Well before enactment of N.J.S. 2C:2-12, however, New Jersey court decisions recognized the entrapment defense through its own common law. An early case recognizing the entrapment defense was State v. Dolce, 41 N.J. 422 (1963). This Dolce opinion, in turn, relied heavily on the federal Sorrells case.
Entrapment: Strategic Considerations
In order to defend on the theory that law enforcement committed an entrapment, it is necessary to concede that the person actually committed the illegal act in the first place. Sometimes, the prosecution's proofs in that regard will be weak. In those situations, the person must decide whether to rely upon his presumption of innocence as to whether he committed the act; or whether to concede that he committed the act, but rely upon the entrapment defense.
Law Offices of Allan Marain
Allan Marain is a New Jersey criminal entrapment lawyer. He has over forty years of criminal defense experience. He has successfully defended thousands of persons charged with crimes. He is available to discuss your charges in a one-on-one confidential no-obligation conference.