Entrapment is one of those legal terms that sound familiar to most Americans, but many think entrapment is much more common than it really is. Some think police do little else but entrap for a living. Others believe dangerous criminals often get to just “plead entrapment” and “walk.”

The truth is that the entrapment defense is hard to use successfully. On the other hand, there are rare times when the defense makes a lot of sense and could be the right thing to do.

Reasons entrapment may be the wrong defense

According to New York State laws, entrapment is an “affirmative” defense. This reverses some rules of typical criminal trials. Instead of the prosecution having to prove their claims, a defendant claiming entrapment has the burden of proof to show the entrapment happened.

Pointing to any other procedural mistakes made by the police would probably mean not having to make an affirmative defense. And unlike an entrapment defense, it would not require admitting that the defendant committed the crime.

Also, everyone is aware of the entrapment idea, and that includes every other suspect and as well as the police.

Police conducting drug or prostitution stings, for example, are usually intensely aware that the situation is likely to raise questions of entrapment. Usually, they carefully train and plan how to walk the line so the arrest will stand up in court.

Entrapment can be the right argument to make

On the other hand, there is little doubt that a long and dishonorable history of entrapment exists in New York and many other cities, states and countries. It happens, and where it does, it should and sometimes will prevent convictions.

GLBTQ people around the country, for example, have long pointed to police entrapment often used before Stonewall and before our perhaps more enlightened era. More recently, as argued in the libertarian-leaning publication Reason, police still use doubtful practices.

Finally, consider that New York’s statute on the use of the entrapment defense is one version of the “objective” defenses used in several other states.

Instead of having to somehow show that the accused did not intend or want to commit the crime, the defense can focus on the behavior of the police. The defense may try to show that police methods created a substantial risk of people breaking the law and that they actively encouraged the crime.