Entrapment: The Most Important Requirement for Your Defense Revealed

Is this too difficult to imagine?

You’ve just been released from prison. You are struggling to become a productive member of society.

You’re looking for job, and trying to get your life on back on track.

So far, no employer has been willing to hire you, due to your criminal record.

You’ve sold nearly everything you own, including your car to pay outstanding debts, and to try and make ends meet.

Day after day you wait for the bus to take you to town so you can continue your job search.

Then one day, you are approached by a man while waiting for your bus. The man asks you if you will purchase $20.00 of crack cocaine. He offers to pay you $10.00 to do the deal.

You hesitate, and think that selling drugs again was the last thing you ever intended to do.

Weary, desperate, and hungry, you err in judgement and agree.

The man takes you to buy the drugs from an acquaintance. You buy the cocaine for him. You give him the cocaine, and he pays you.

Following the exchange of drugs and money, the man immediately arrests you.

You now face returning to prison, and serving 8 to 10 more years for selling illegal drugs while on parole.

The man who approached you at the bus stop was an undercover police officer. You were clearly entrapped.

But you will not have a chance to gain an acquittal based on the entrapment defense, without doing this one very important thing…

That is, if you wish to challenge the charges by utilizing the entrapment defense, you must admit to the substantial elements of the crime.

In simple terms, you will need to admit that you committed the criminal act for which you were charged.

You are confused by this. It goes against everything you understood about your 5th Amendment rights and protections against self-incrimination. So you do not admit to the crime.

But the fact is, it doesn’t matter how much police deception or inducement was involved. Unless you are prepared to formally admit to the substantial elements of the crime, either in testimony or stipulation, the entrapment defense will not apply.

You are convicted and sentenced to return to prison to serve 9 more years. Your freedom was short lived.

Not only is this scenario imaginable, but the the high court of Arizona recently heard a case with similar circumstances. This statutory requirement was affirmed in that case.

The Arizona Supreme Court held that the entrapment defense afforded under A.R.S. 13-206, is reserved for cases in which the defendant admits to the substantial elements of the crime.

In this article we examine the often misunderstood entrapment defense, and include the following featured topics:

Overview of recent Arizona Supreme Court ruling in a cocaine case;
7 questions and answers regarding application of the entrapment defense;
The requirements of making a valid entrapment claim in Arizona;
The burden of proof for entrapment;
Arizona entrapment law A.R.S. 12 – 206;
10 other drug crimes defenses besides entrapment;
Criminal defense for drug charges in Phoenix AZ

Arizona Supreme Court Case Overview

The case arose when an undercover police officer approached the defendant at a bus stop. The officer asked the man if he could get him some “hard,” the street name for crack cocaine.

The defendant agreed he would get the undercover officer $20 worth of crack cocaine for $10.

The officer drove the man to an apartment complex and gave him the $20 to take with him.

Ten minutes later, the defendant returned with cocaine. The cop arrested him for sale of narcotics.

The cop had secretly recorded the conversation with the defendant. On the recording, the defendant said, “I’m a good person” and “I don’t usually do this.”

The prosecution presented the recording of the conversation between the officer and the defendant as evidence at trial, over the defendant’s objection.

The defendant asked that the jury be instructed on the defense of entrapment as provided under Arizona’s law A.R.S. § 13-206.

In order to claim entrapment, a defendant must admit the substantial elements of the crime that is being charged through testimony or other evidence.

In this case, the trial court determined that the defendant hadn’t made the required admissions to the substantial elements of the crime.

Therefore, the request to instruct the jury instruct the jury on the Entrapment defense, was denied.

The defendant was found guilty by the jury. He was sentenced to 9 1/4 years in prison.

The Arizona Court of Appeals appellate court affirmed the trial court’s ruling on the grounds that he hadn’t admitted the elements of the crime.

An Appeal was then made to the Arizona Supreme Court. They agreed to review the case in order to consider whether A.R.S. § 13-206 requires a defendant asking for a jury instruction on entrapment to affirmatively admit the crime’s elements.

The court explained that the statute didn’t expressly state that a defendant could admit elements simply by not challenging the prosecution’s evidence.

The defendant argued that the Court should construe the statute as not requiring an affirmative admission and his silence on this point could be deemed an admission.

The Court found this argument by the defendant unpersuasive.

In its’ opinion, the court provided the history behind the entrapment laws in Arizona explaining that it was founded on common law.

Traditionally, the defendant had to admit substantial elements of the crime being charged.

If the defendant, in that case, denied knowledge of the crime they could not raise the entrapment defense.

Furthermore, the State had to act in such a way as to induce the accused to commit a crime that he wouldn’t otherwise have committed.

Simply providing an opportunity to commit the crime is not enough to be successful on an entrapment defense.

Under common law, a defendant could not passively admit the crime’s elements by not taking the stand in order to invoke the defense.

The Court explained that the statute had to be interpreted with an eye toward the requirements of common law, unless the language of the statute showed an intention to change those requirements.

The defendant argued that requiring him to affirmatively admit the elements in order to claim entrapment was in conflict with the Fifth Amendment right against self-incrimination.

In response to this argument, the Court explained that entrapment is not a denial of criminal responsibility but instead an affirmative defense.

Although the defendant had made incriminating statements and implicated himself unwittingly, he quite possibly may have been found not guilty of the charges if he had been able to use the entrapment defense.

To the contrary, however, he did not affirmatively admit substantial elements of the crime, and therefore, that defense was not made available to him

The recorded conversation didn’t prove that the defendant provided drugs to the officer

Instead, this was proven by the officer’s testimony. The defendant had not challenged that testimony, and so the court confirmed the conviction and sentence of 9.25 years in prison.

Q & A: Entrapment Defense

Q. Is it entrapment if undercover officer hides their identity as a law enforcement official?

A. Not always. If a person is committing a crime that they would have committed even if the undercover officer was not involved, entrapment would not apply under A.R.S. 13-206 (C).

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Q. What is the burden of proof standard for entrapment in Arizona?

A. Under Arizona Law A.R.S. 13-206 (B) the burden of proof is by “clear and convincing” evidence. This is a medium level of proof that must be shown. It is a higher standard than “preponderance of the evidence,” but a lower standard than” beyond a reasonable doubt.”

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Q. Who holds the burden of proof when the defendant wishes to use the entrapment defense?

A. Under Arizona Law A.R.S. 13-206 (B) the defendant is bears the burden of proof. Generally, the prosecution bears the burden of proof. However, since entrapment is an affirmative defense, the burden shifts to the defendant.

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Q. If a person wishes to use the entrapment defense, must they admit that they committed the criminal act?

A. Yes. In order for the entrapment defense to apply under A.R.S. 13-206 (A), the defendant must admit to the substantial elements of the crime.

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Q. Does the entrapment defense apply if a law enforcement officer provides a person with an opportunity to commit a crime?

A. No. The undercover officer’s role must be more substantial. The crime must be the law enforcement officer’s idea. The officer must induce, influence, or urge the accused to commit the criminal act.

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Q. The police stakeout the scene of a planned crime based on a tip, and arrest the suspects while the crime is in progress. Does the entrapment defense apply?

A. No. Since the police did not urge, plan or induce the crime, the entrapment does not apply.

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Q. If a defendant does not challenge the testimony or evidence, will the entrapment defense apply?

A. No. The Arizona Courts have held that to refrain from objecting to the evidence or testimony, does not constitute admittance of the substantial elements of the charges State of Arizona v. Grey, June 2016.

Requirements of a Valid Entrapment Claim

In this case, the Arizona Supreme Court outlined the requirements needed to make a valid claim of entrapment:

Citing State v. McKinney Arizona, 1972, and State v Nilsen, 1983, the court noted the following:

Law enforcement’s actions must have induced the defendant to commit a crime that they would otherwise not have committed; and
Law enforcement must have provided the accused with the opportunity to commit the offense; and
The defendant must admit to the substantial elements of the crime; and
A defendant may stipulate, testify, or have the admission read into evidence the admissions; and
Merely refraining from challenging the evidence does not rise to the requirement of admitting to the substantial elements of the crime.

Arizona Entrapment Law A.R.S. 13-206

The entrapment law is what is known as an affirmative defense. Under A.R.S. 13- 206, entrapment is a defense in which the accused admits to criminal conduct and seeks to be excused from criminal liability, based on intervening circumstances.

Generally in criminal cases, the burden of proof lies with the prosecution and state to prove beyond a reasonable doubt that the accused is guilty of the crime for which they were accused.

But Affirmative defense are one of a few exceptions to this rule.

In the case of entrapment and other affirmative defenses, the defendant the accused has the burden of proving by “clear and convincing evidence” these three elements:

The law enforcement officer’s initiated the idea of the accused committing the crime;
The law enforcement officer influenced and provided the opportunity for the accused to commit the offense;
Prior to the law enforcement officer’s inducement of the crime, the accused had not planned to commit the crime.

Under Arizona’s law, entrapment does not apply if the accused was already planning or intending to commit the crime, and the officer simply provided the opportunity.

It is also not considered entrapment in Arizona if a police officer simply hides their identity during the interaction or exchange.

10 Defenses used to Challenge Drug Charges

Below are 10 other defenses, that may be used to challenge drug charges:

Unlawful search and/or seizure;
Mistake of fact;
False identification;
No probable cause for arrest; The officer did not have reasonable suspicion for detention;
You had no knowledge that a drug crime was in progress;
The illegal drugs found did not belong to you and you were not aware they were in your possession;
The illegal drugs found in your vehicle or home were for personal use and not for sale;
You did not have the amount of drugs that you were accused of having, in your possession;
Law enforcement planted the drugs for prosecution, or someone else planted them in your possession to avoid prosecution themselves;
Violation of other constitutional or procedural rights.

The best way to defend your charges whether or not any of these defenses apply is to retain a qualified criminal defense attorney to represent you, and raise the challenges on your behalf.

Criminal Defense for Drug Charges Phoenix and East Valley AZ

When you are facing drug charges in Arizona, it is important that you retain an experienced and highly skilled drug crimes defense attorney to represent you.

In addition to entrapment, there are a number of other defenses that can be used to defend drug charges.

It is crucial that your defense be tailored to the unique circumstances surrounding your case.

James Novak, Criminal Defense Attorney of the Law Office of James Novak, PLLC is a former prosecutor. He has a vast amount of experience defending drug charges in Maricopa County.

If retained he will protect your rights and defend your charges. He provides strong representation, and will work to obtain the most favorable resolution to your charges.

James Novak offers a free initial consultation to people facing active criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona. If you are charged with a drug crime, you can contact or call the Law Office of James Novak at (480) 413-1499 and speak with James Novak for your free and confidential initial consultation.

Additional Resources:

A.R.S. 13-206 (Entrapment)
A.R.S. 13-3408 (Possession of Narcotic Drugs)
A.R.S. 13-3401 (Drug Definitions)
Requirements and Exceptions to Lawful Search Warrants in Arizona
National Library of Medicine | National Institute of Health
Drug War Facts
Drug Enforcement Administration Drug Facts
DEA Phoenix Division

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