Law enforcement agencies have to be careful when they send undercover officers or confidential informants (CIs) into situations to find evidence of criminal activity and bring those who are guilty to justice. They have to get close enough to their suspects to witness criminal wrongdoing without provoking any illegal acts.
If they don’t balance that tightrope, they can engage in entrapment. Entrapment can be a solid defense for someone charged with a crime and can get their case thrown out – or at least get a “not guilty” verdict from a jury.
What is entrapment?
Entrapment occurs when a law enforcement officer or CI (both of whom are considered “government agents”) persuades or orders someone to engage in illegal activity they otherwise would not have or tells them that an illegal act isn’t illegal.
Trained law enforcement professionals from the local to the federal level typically know how to get people to trust them without going so far as they’re instigating criminal behavior. CIs often don’t. It’s important to note that both are allowed to lie if asked if they’re working for the government.
How do you prove entrapment?
This isn’t easy, because it’s often one person’s word against another’s. Further, if you’re already in a situation that’s being investigated for criminal activity, prosecutors can argue that you would have acted illegally whether the undercover agent was there or not. The totality of the situation will need to be examined, including how quickly you agreed to allegedly commit the illegal act.
In a case that made national and international headlines earlier this year, two men were acquitted of conspiring to kidnap Michigan Governor Gretchen Whitmer. Their attorneys successfully argued that the two men were big talkers but generally too stoned to carry out such a plot. They said the men were “tricked and cajoled” by FBI agents and informants into participating in the conspiracy.
Undercover agents are often involved in investigating drug crimes, but they can pop up virtually anywhere there’s suspected illegal activity. If you believe you were entrapped into committing a crime, it’s crucial to seek experienced legal guidance to protect your rights.