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Chapter 8: Trial Defenses



Entrapment defenses may arise in cases where undercover government agents induce a defendant to commit a child pornography offense when they otherwise would not have. In Jacobson v. United States, the Supreme Court determined that the government had induced the defendant to receive child pornography. Because the defendant did not have a predisposition to commit the defense, and instead was subjected to years of undercover government activity attempting to convince him to commit the offense, he could not be convicted. Entrapment is a complete defense, as government agents “may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.”[1]

Matthews v. United States establishes that even if a defendant denies guilt, they are nonetheless entitled to an entrapment defense as long as there is sufficient evidence, allowing defendants to argue both that they did not commit the crime and that if they did commit it, they were entrapped.[2]

An entrapment defense has two related elements: (1) government inducement of the crime, and (2) the defendant’s lack of predisposition to engage in criminal conduct.[3] Once the defense proves that the defendant was induced to commit the crime, the burden shifts to the government to prove that they were nonetheless predisposed to commit the crime.[4]

[1] Jacobson v. United States, 503 U.S. 540, 112 S. Ct. 1535, 118 L. Ed. 2d 174 (1992)

[2] Mathews v. United States, 485 U.S. 58, 58, 108 S. Ct. 883, 884, 99 L. Ed. 2d 54 (1988)

[3] Ibid.

[4] United States v. Van Slyke, 976 F.2d 1159 (8th Cir. 1992)


To establish that the government induced the defendant to commit the crime, evidence that a government agent merely approached and requested them to commit the crime is generally insufficient.[5] Most courts require proof that the government’s conduct “created a substantial risk that an undisposed person or otherwise law-abiding citizen would commit the offense.”[6] Evidence that the government engaged in “persuasion, threats, coercive tactics, harassment, or pleas based on sympathy or friendship” may also help establish inducement.[7] Courts have also established that inducement is established if the government’s behavior was such that “a law abiding citizen’s will to obey the law could have been overborne” or created “a substantial risk that an offense would be committed by a person other than one ready to commit it.”[8]

[5] Sorrells v. United States, 287 U.S. 435, 451 (1932)

[6] United States v. Mendoza-Salgado, 964 F.2d 993 (10th Cir. 1992)

[7] V. Kukura, T. (1993). Undercover Investigations and the Entrapment Defense: Recent Court Cases. FBI Law Enforcement Bulletin. https://www.ojp.gov/pdffiles1/Digitization/141835NCJRS.pdf; United States v. Nations, 764 F.2d 1073, 1080 (5th Cir. 1985); United States v. Evans, 924 F.2d 714, 717 (7th Cir. 1991)

[8] United States v. Kelly, 748 F.2d 691, 698 (D.C. Cir. 1984); United States v. Johnson, 872 F.2d 612, 620 (5th Cir. 1989)


Predisposition is “the principal element in the defense of entrapment.”[9] This is because even if the evidence proves that the government indeed induced a person to break the law, the defendant can still be convicted if the prosecution proves that the defendant was predisposed to commit the act prior to first being approached by government agents.[10] Predisposition is essentially the defendant’s state of mind prior to their initial exposure to government agents. The matter of predisposition focuses upon whether the defendant “was an unwary innocent or, instead, an unwary criminal who readily availed himself of the opportunity to perpetrate the crime.”[11] Courts have generally agreed that predisposition can be shown by:[12]

  • The defendant’s character or reputation (including criminal record)
  • Whether the suggestion of the criminal activity was initially made by the government
  • Whether the defendant was engaged in criminal activity for profit
  • Whether there was evidence of the defendant’s reluctance to commit the offense, overcome only by repeated government inducements or persuasion
  • The nature of the inducement or persuasion supplied by the government

Evidence that “merely indicates a generic inclination to act within a broad range, not all of which is criminal, is of little probative value in establishing predisposition.”[13] Predisposition is therefore not the same thing as intent or mens rea, as someone may have the intent to commit a crime and yet still be entrapped. For example, in Jacobson, by the time the defendant actually ordered child pornography, he had been the target of over two years of repeated mailings and communications from government agents, meaning that the government could not prove that his predisposition to break the law was independent and not the product of the government’s inducement.[14]

[9] United States v. Russell, 411 U.S. 423, 433, 93 S. Ct. 1637, 1643, 36 L. Ed. 2d 366 (1973)

[10] United States v. Whoie, 925 F.2d 1481, 1483 (D.C. Cir. 1991)

[11] Mathews v. United States, 485 U.S. 58, 58, 108 S. Ct. 883, 884, 99 L. Ed. 2d 54 (1988)

[12] United States v. Moore, 916 F.2d 1131, 1137 (6th Cir. 1990); United States v. Kaminski, 703 F.2d 1004, 1008 (7th Cir. 1983); United States v. Reynoso-Ulloa, 548 F.2d 1329, 1337 (9th Cir. 1977)

[13] Jacobson v. United States, 503 U.S. 540, 550, 112 S. Ct. 1535, 1541, 118 L. Ed. 2d 174 (1992)

[14] Ibid.


Circuit courts have generally held that there is no requirement that the government has reasonable suspicion before targeting a person through an undercover operation.[15]

[15] United States v. Jacobson, 916 F.2d 467, 469 (8th Cir. 1990), en banc, reversed on other grounds by 112 S.Ct. 1535.


The Due Process Clause of the Fifth Amendment protects against situations “in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction…” Claims of outrageous government conduct are rarely successful but are technically possible. In such a case, the defendant was predisposed to commit the crime, but aims for dismissal on the ground that the conduct of government agents was “so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction.” This is less of a defense and more a “claim that the institution of the prosecution suffers from a purely legal defect; as such, the claim is waived unless raised prior to trial under Fed. R. Crim. P. 12(b)(1) and (b)(2).” The government’s use of undercover agents, informants, or deception alone is insufficient to establish a due process violation. Instead, the government’s conduct would have to be so fundamentally unfair as to be “shocking the universal sense of justice.” Needless to say, this is very rare.

[16] United States v. Russell, 93 S.Ct. 1637, 1642-43 (1973)

[17] Ibid.

[18] https://www.justice.gov/archives/jm/criminal-resource-manual-648-entrapment-outrageous-government-conduct; United States v. Henderson-Durand, 985 F.2d 970, 973 & n. 5 (8th Cir.), cert. denied, 510 U.S. 856 (1993); United States v. Duncan, 896 F.2d 271, 274 (7th Cir. 1990); United States v. Nunez-Rios, 622 F.2d 1093, 1099 (2d Cir. 1980).

[19] United States v. Russell, 411 U.S. 423, 431-32 (1973)


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