Entrapment Cases and the Use of Confidential Informants

Proving entrapment can be a tough task, mainly because the majority of prosecutors and judges do not want to admit that their agents would allow an informant to “create” a crime, as opposed to actually detecting a crime. Still, entrapment cases are quite prevalent throughout Florida, primarily due to the use of confidential informants who are trying to get out of their own legal binds.

But, what exactly is “entrapment?” In Florida, there are two kinds of entrapment: objective and subjective. Objective entrapment is typically applied to cases that involve egregious conduct by the police and is evaluated under the due process provision of the state constitution.

Simply stated, the objective entrapment defense involves an analysis of the circumstances in their totality in order to assess whether or not the conduct of the police officers “offends principles of decency and fairness.”

The subjective entrapment test is generally applied to cases involving police conduct that was not egregious in nature such that it would violate basic due process principles. The test for subjective entrapment can be found in Section 777.201 of the Florida Statutes. Under the law, the following elements must be shown by a preponderance of the evidence:

  • The accused was encouraged (or induced) by the police or an agent of the police (such as a confidential informant) to take part in criminal activities in an effort for the police to gather evidence of the commission of a crime;
  • The accused individual took part in the criminal conduct as a direct result of the police officer’s encouragement or inducement;
  • The encourager or inducer was an officer or an officer’s agent (i.e. an informant);
  • The inducer or encourager used methods of persuasion or inducement to create a substantial risk that someone other than the person ready to commit the crime would commit the crime; and
  • The accused individual was not the individual who was ready to commit the crime.

After an accused individual establishes the above-mentioned elements, the burden then switches to the prosecution to demonstrate beyond a reasonable doubt that the accused individual was “predisposed” to commit the alleged crime and that predisposition existed prior to and independent of the police officer’s encouragement or inducement. If both prongs cannot be proven beyond a reasonable doubt, a finding of “not guilty” must be made.

Using the Entrapment Defense

Florida courts created the entrapment defense in an effort to ensure justice was secured in cases in which the government’s own actions were responsible for the accused individual’s conduct.

It is based on the concept that it is “fundamentally unjust” for police officers or other government agents to create a criminal design, permeate an innocent individual’s mind with the disposition to carry out said criminal design and then encourage or induce the commission of that crime in order to prosecute.

When used appropriately, the entrapment defense can, in essence, excuse an otherwise criminal act or, in some instances, lead to the accused individual’s criminal charges being dismissed.

If you believe that you are dealing with an entrapment situation in your case, contact the Bradenton criminal defense attorneys at the Fowler Law Group by calling (941) 900-3100 as soon as possible to ensure your rights are preserved.

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