Monday, August 20, 2012

The "Entrapment" Defense: You Probably Can't Use It.

So, apparently there is a television show where police set up a camera in a car and leave the car out in the street unlocked, with the windows down and the keys inside.  The point is to see if someone is going to steal it, and then arrest the car thief.  The show is called “Hot Car” or “Dashboard Detectives” or some such crap.

Invariably, some scoundrel jumps in the car and takes off.  Then the police give chase, and scoundrel’s fun is ruined.  After the police cuff the guy, they look to the camera and say “Now it’s time for you to joyride - TO JAIL!!!”  

I’m sure the show is awful and I’m not going to watch it.

The people who have asked me about this show seem (for reasons I can’t understand) to actually feel kind of bad for the person who steals the car.  And the most popular question raised by the show, “Fast Getaway,” is:  Greg, isn’t that ENTRAPMENT!?!?

Unfortunately television and films have taught the American public that entrapment is a popular defense and a rad movie with Catherine Zeta-Jones dodging lasers in a Catwoman suit (Mee-awesome).  In reality, “entrapment” is used only in extremely rare occasions involving heinous police misconduct.  Let’s take a look at Kentucky law on the subject.  Although entrapment is generally understood to be a creature created by caselaw, we do have a Kentucky Revised Statute on the subject.  KRS 505.010 governs the defense of entrapment, and it reads:

505.010 Entrapment.
(1) A person is not guilty of an offense arising out of proscribed conduct when:
(a) He was induced or encouraged to engage in that conduct by a public servant or by a person acting in cooperation with a public servant seeking to obtain evidence against him for the purpose of criminal prosecution; and
(b) At the time of the inducement or encouragement, he was not otherwise disposed to engage in such conduct.
(2) The relief afforded by subsection (1) is unavailable when:
(a) The public servant or the person acting in cooperation with a public servant merely affords the defendant an opportunity to commit an offense; or
(b) The offense charged has physical injury or the threat of physical injury as one (1) of its elements and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment.
The relief provided a defendant by subsection (1) is a defense.

I know the above statute is kinda complicated and you pretty much need a doctoral degree to discern it.  So I’m bout to break it down like Charlie Brown, Linus by Linus.

Basically, it says that the police have to “induce” the scoundrel to do something illegal.  And the scoundrel would not have been the type of person to do that illegal conduct unless the police had induced them to do something illegal.

Above, the statute uses the language “induce or encourage” but Courts aren’t likely to allow a Defendant to use the defense unless there is strong inducement on behalf of the police.  Police have to really work hard to talk scoundrel into breaking the law, or it doesn’t count as entrapment.

Also, if police are undercover at a concert, and they come up to scoundrel asking “Do you want to buy some pot?” and the police are really pushy about it (inducement), it still wouldn’t be entrapment if scoundrel is the type of dude who likes to buy some weed every once in a while.  Scoundrel won’t be able to show that he would not have been otherwise disposed to engage in such conduct.  Because scoundrel likes to party.

Leaving keys in an unlocked car simply doesn’t come close.

If you have any more questions about entrapment, please let me know.  But 99% of the time I get asked, the answer is “No.  That isn’t entrapment.”

For more questions - hit me up at 502.473.6464.  Murphy & Powell, PLC.

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