Subjective Entrapment vs. Objective Entrapment
Entrapment is a defense to a crime, such as
trafficking. There are two different types of entrapment in the State of Florida:
subjective and objective.
Subjective entrapment is codified in Section 777.201, Florida Statutes (2012), and focuses on
inducement of the defendant by an agent of the government when the defendant
did not have a predisposition to commit the crime.
Objective entrapment arises in the presence of egregious law enforcement conduct and is to
be objectively evaluated under the Due Process Clause of Article I, Section
9, of the Florida Constitution
. Munoz v. State, 629 So.2d 90, 99 (Fla.1993).
From the Supreme Court of Florida
Munoz, the Supreme Court of Florida determined that:
(1) a defendant has the initial burden of proof to establish by a preponderance
of the evidence that an agent of the government induced the defendant
to commit the offense charged;
(2) the defendant has the initial burden to establish lack of predisposition;
(3) when the defendant produces evidence of no predisposition, the burden
then shifts to the State to prove by a preponderance of the evidence that
the defendant was predisposed to commit the offense charged;
and (4) the judge has authority to rule on the issue of predisposition
when the defendant established the governmental agent induced the defendant,
and the State is unable to present sufficient evidence that the defendant
was predisposed to commit the offense charged. Id. at 99-100.
Inducement for the purpose of this entrapment theory is defined as “
[a]ny government conduct creating a substantial risk that an otherwise
law-abiding citizen would commit an offense, including persuasion, fraudulent
representations, threats, coercive tactics, harassment, promises of reward,
or pleas based on need, sympathy or friendship.” Farley v. State,
848 So.2d 393, 395 (Fla.4
th DCA 2003)
. Predisposition is defined as “[w]hether the accused was awaiting
any propitious opportunity or was ready and willing, without persuasion,
to commit the offense.” Farley. at 396.
Justice Roberts v. United States
The public policy behind the theory of objective entrapment is best described
by Justice Roberts in Sorells v. United States, 287 U.S. 435, 53 S.Ct.
210, 77 L.Ed 413 (1932), as follows:
The doctrine [of entrapment] rests… on a fundamental rule of public
policy. The protection of its own functions and preservation of the purity
of its own temple belongs only to the court. It is the province of the
court and of the court alone to protect itself and the government from
such prostitution of the criminal law…To say that such conduct
by an official of government is condoned and rendered innocuous by the
fact that the defendant had a bad reputation or had previously transgressed
is wholly to disregard the reason for refusing the processes of the court
to consummate an abhorrent transaction… The accepted procedure,
in effect, pivots conviction in such cases, not on the commission of the
crime charged, but on the prior reputation or some former act or acts
of the defendant not mentioned in the indictment.
287 U.S. 435, 457-59, 53 S.Ct.210, 218-19 (Roberts, J., dissenting). Therefore,
unlike the subjective test where the focus is on the issue of inducement
and predisposition, an analysis of entrapment under the objective test
focuses on the conduct of the police. State v. Blanco, App. 4 Dist., 896
So.2d 900 (2005). If a defendant can prove entrapment by the preponderance
of the evidence, then the defendant’s case should be dismissed.
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