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Entrapment as a Defense 

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Florida recognizes two types of entrapment: (1) "objective" entrapment; and (2) "subjective" entrapment. The objective entrapment defense focuses exclusively on the conduct of law enforcement; it makes no room for consideration of the accused person's predisposition to commit the charged crime. Where the conduct of law enforcement is so egregious, in inducing or enticing a person to commit a crime, that it amounts to a due process violation, then it is deemed a matter of law and is to be resolved by the court upon the filing of a motion to dismiss. If the court grants the motion, then the case is over (subject to successful appeal by the state).

The subjective entrapment defense focuses on the accused person (as opposed to law enforcement) and whether that person was predisposed to commit the charged offense. Where the methods employed by law enforcement conduct, in inducing a person to commit a crime, were constitutionally permissible, the subjective entrapment defense is the appropriate remedy where there is a good faith basis to assert that the accused lacked predisposition to commit the offense in question. This is usually a question of fact to be decided by a jury. There is however, an exception: where the state cannot introduce any evidence whatsoever to rebut an asserted lack of predisposition, the defendant may file a motion to dismiss (similar to a (c)(4) motion). Where there is evidence of predisposition, the jury will decide whether the accused was entrapped.

Applicable Statute

Florida statutes § 777.201 provides as follows:

  1. A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he or she induces or encourages and, as a direct result causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.
  2. A person prosecuted for a crime shall be acquitted if the person proves by a preponderance of the evidence that his or her criminal conduct occurred as a result of entrapment. The issue of entrapment shall be tried by the trier of fact.

Applicable Jury Instructions

Florida standard jury instruction 3.6(j) provides as follows:

The defense of entrapment has been raised. The defendant was entrapped if:

  1. He or she was, for the purpose of obtaining evidence of the commission of a crime, induced or encouraged to engage in conduct constituting the crime,
  2. He or she engaged in such conduct as the direct result of such inducement or encouragement;
  3. The person who induced or encouraged him or her was a law enforcement officer or a person engaged in cooperating with or acting as an agent of a law enforcement officer;
  4. The person who induced or encouraged him or her employed methods of persuasion or inducement which created a substantial risk that the crime would be committed by a person other than one who was ready to commit it; and
  5. The defendant was not a person who was ready to commit the crime.

It is not entrapment if the defendant had the predisposition to commit the crime charged. The defendant had the predisposition if before any law enforcement officer or person acting for the officer persuaded, induced, or lured the defendant, he or she had the readiness or willingness commit the crime charged if the opportunity presented itself.

It also not entrapment merely because a law enforcement officer, in good faith, attempted to detect crime:

  1. Provided the defendant the opportunity, means, and faculties to commit the offense, which the defendant intended to commit, and would have committed otherwise;
  2. Used tricks, decoys, or subterfuge to expose the defendant's criminal acts; or
  3. Was present and pretending to aid or assist in the commission of the offense.

On the issue of entrapment, the defendant must prove to you by a greater weight of the evidence that a law enforcement officer or agent induced or encouraged the crime charged. Greater weight of the evidence means that evidence which is more persuasive and convincing. If the defendant does so, the state must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime charged. The state must prove the defendant's predisposition to commit the crime charged existed prior to and independent of the inducement or encouragement.

If you find that the defendant was entrapped, you should find the defendant not guilty of the crime charged. If, however, you find the defendant was not entrapped, you should find the defendant guilty if all of the elements of the charge have been proved.

Relevant Case law

  1. Cruz v. State of Florida, 465 So.2d 516 (Fla. 1985)(subjective and objective entrapment doctrines can coexist; court must first decide whether police have cast their nets in permissible waters and, if so, the jury must decide whether a particular defendant was a person who was predisposed whom police may permissibly ensnare).
  2. Munoz v. State, 629 So.2d 90 (Fla. 1993)(Fla. Stat. § 777.201 does not prohibit the judiciary from objectively reviewing the issue of entrapment to the extent that such a review involves the due process clause of article I, section 9 of the Florida Constitution, nor prohibits the judiciary from determining under the subjective test that, in certain circumstances, entrapment has been established as a matter of law).
  3. State v. Finno, 643 So.2d 1166 (Fla. 4th DCA 1994)(defendants were not predisposed to commit crime of loansharking, which was induced by police and were entitled to defense of entrapment to loansharking charges as a matter of law where the idea of a loansharking operation originated with police who had investigated defendants for several months and found no criminal activity, defendant's total ignorance of activity was shown by the fact that government informants had to show them how to conduct the loansharking operation, and the state presented no evidence of predisposition to commit the crime).


  1. This is Entrapmment!! (Right??)
  2. Florida's Williams Rule: What Is It & What Does It Mean For My Criminal Case?

The Bottom Line

Where the conduct of law enforcement violates due process (this is rare), the appropriate remedy is a motion to dismiss based on an objective entrapment theory. If the motion is denied, or law enforcement conduct was constitutionally permissible, the subjective entrapment defense may also provide a viable remedy. Where there is no evidence of predisposition, a motion to dismiss may be filed, despite the language of the statute (which says entrapment issues are to be resolved by the trier of fact) based on the holding in Munoz. Where there is evidence of pre-disposition, the issue of subjective entrapment must be resolved by a jury.

Ordinarily, an accused person's prior criminal history does not come into evidence for consideration by the jury. Where the subjective entrapment defense is raised, the state may inquire into these matters to rebut an asserted lack of predisposition. Depending on the nature and circumstances of the prior conduct, this can really create some problems for an accused person. Simply put, the viability of an entrapment defense will usually depend on an accused's willingness to commit the crime, and his or her prior conduct.

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