Copyright © 1998 Florida State University Law Review

A. Introduction: The Birth of the Entrapment Doctrine
B. Subjective Entrapment: The Prevailing Theory
C. The Nature of the Predisposition Inquiry
D. Types of Predisposition Evidence
1. Similar Past Acts: Noncriminal Acts, Criminal Convictions, and Criminal Allegations
2. Response to the Inducement and Opportunity to Withdraw
3. Subsequent Acts and Statements
4. Defendant's Reputation and Hearsay
5. Defendant's Ability to Commit the Crime
E. A Critique of the Subjective Approach
A. Introduction: The Birth of the Objective Approach
B. The Nature of the Objective Inquiry and Its Adoption by Various States
C. A Critique of the Objective Approach
A. The Composite Hybrid Approach
B. The Discrete Hybrid Approach
A. Introduction: The Birth and Nature of the Outrageous Government Conduct Defense
B. Constitutional and Precedential Foundations of the Defense
1. Substantive Due Process and Official Misconduct
2. Supreme Court Precedent Addressing the Defense
C. Lower Court Adoption of the Outrageous Government Conduct Defense: Competing Perspectives
1. The Prevailing Perspective: The Defense Is a Valid Exercise of Substantive Due Process
2. The Minority View: The Defense Is Unconstitutional


In Pennsylvania, undercover police officers sell a new Sears videocassette recorder to a shopkeeper at a suspiciously low price. The shopkeeper then repeatedly calls the security manager of the local Sears store in an attempt to ascertain if the VCR had been stolen. The security manager, who provided the VCR to the police officers, assures the shopkeeper that it was not stolen but does not tell him of the covert police operation. The shopkeeper then advises a uniformed police officer that he suspects the VCR was stolen, but the officer merely instructs him to stop harassing Sears employees. Thus reassured, the shopkeeper makes several other purchases from the undercover police officers. He is later indicted for conspiracy to receive stolen property.[1]

In Florida, an unemployed man is invited to rent a room in the home of a police informant. When he falls behind in his rent payments, the informant tells the man that he has friends in the Mafia and that these friends would not put up with a moocher. The informant then kicks the man out, leaving him fearful, jobless, and homeless. Police detectives, posing as the informant's Mafia friends, then approach the man and offer him a job and a place to live, but only on the condition that he find them a supplier of cocaine. After some hesitation, the man agrees and is subsequently arrested for conspiring to engage in drug trafficking.[2]

On a summer night in Springfield, Missouri, two informants on the police payroll, acting at the direction of the Springfield Police Department, break into a building and steal a safe. An undercover police officer helps them load the safe into a van while a fourth man, who does not know that it is a police operation, sits in a car one-half block away and acts as a lookout. Six weeks later, only the lookout is arrested. He is charged with burglary and conspiracy.[3]

Although police-induced criminal activity is relatively rare, the issues of whether and how the judiciary should deal with it have engendered a great deal of controversy for most of this century.[4] In 1932, the U.S. Supreme Court responded to the controversy by recognizing the defense of entrapment.[5] Since then, this defense has been adopted in one form or another in almost every jurisdiction in the United States.[6] Its effect is to exculpate those who might not have committed a crime but for the government's involvement and coercive efforts.[7]

Even though this judicially created defense has become a fundamental component of American jurisprudence over the past sixty-five years, its doctrinal underpinnings remain in dispute.[8] As a consequence, several different forms of the entrapment defense are employed around the country, and fundamental issues surrounding it remain unresolved.[9] For example, why should society exculpate those committing crimes at the behest of the government, but not those beguiled into criminal activity by someone else? Is it appropriate for the judiciary to scrutinize the law enforcement activities of the executive branch? Is the purpose of the defense to deter police misconduct or is it to protect innocent defendants?

Based on different answers to these unresolved questions, the judiciary has developed two basic forms of the entrapment defense. Although both forms share a common goal—to determine whether the government's involvement is the principal cause of the crime—the foci of the two inquiries differ.[10] The objective form of the entrapment defense emphasizes the nature of the government's actions, while the subjective form focuses on the defendant's state of mind.[11]

A minority of the Supreme Court Justices, along with a minority of the states and the American Law Institute, have concluded that an entrapment defense should be founded in the public policy rationales of deterring police misconduct and preserving the integrity of the judicial process.[12] Based on this conclusion, they argue for the adoption of the objective approach, in which the conduct of the government actor, rather than the defendant's predisposition or culpability, is the principal focus of the inquiry into whether the government inducement caused the crime.[13] If the government engaged in conduct that was illegal or inappropriate, then a court applying the objective standard may find that the defendant was entrapped regardless of other considerations.[14]

The charges against the Pennsylvania shopkeeper, for example, were dismissed after the trial court applied the objective approach.[15] The dismissal was affirmed by the Pennsylvania Superior Court after it concluded that the actions of the police were inappropriate because they were clearly designed to induce the shopkeeper into believing that his purchases were not unlawful.[16]

In contrast, a majority of the Supreme Court Justices have always favored the subjective approach to entrapment. According to this view, entrapment is a defense founded in legislative intent and the concept of fundamental fairness to defendants.[1]7 In Sorrells v. United States,[18] the case in which the Court first recognized entrapment as a defense, the majority reasoned that it was contrary to established principles of law to "punish a man for the commission of an offense of the like of which he had never been guilty, either in thought or in deed, and evidently never would have been guilty of if the officers of the law had not . . . lured him to . . . commit it."[19] Pursuant to this reasoning, the federal courts and most of the states have adopted the subjective standard, in which the court examines the extent to which the defendant was subjectively predisposed to commit the criminal act prior to the government's involvement.[20]

In the case of the Florida man charged with conspiracy to engage in drug trafficking, the Florida district court applied the subjective approach.[21] Rather than examining the actions of the police and the informant, the court reversed the man's conviction solely because it concluded that he was not disposed to engage in drug trafficking prior to his contact with the undercover police officers.[22]

In recent years, to expand the protections afforded under the beleaguered and arguably underinclusive entrapment doctrine, some jurisdictions have also recognized the due process-based exculpatory defense of outrageous government conduct.[23] The outrageous government conduct defense is founded on the principle that when the government's conduct and involvement in a criminal venture is so scandalous that a defendant is arguably deprived of due process of law, fundamental fairness prohibits prosecution of the resulting crime.[24] Because the defense is founded in the Constitution, it is doctrinally distinct from the various forms of entrapment. Nevertheless, in practical application, there is some redundancy between the outrageous government conduct defense and the objective approach.[25]

For example, in the case of the lookout in Springfield who was charged with burglary, the only statutory defense available to him under Missouri law was the subjective approach to entrapment.[26] Even though the court concluded that the defendant was predisposed to commit the burglary, it nevertheless examined the actions of the police officers and reversed his conviction on due process grounds because "[if] the government agents had not been there, doing their illegal acts, defendant's conduct would not be illegal."[27]

The federal courts of appeals have split over their recognition of the outrageous government conduct defense, with some concluding that it represents an erroneous attempt to expand the protections of the Fifth and Fourteenth Amendment Due Process Clauses.[28] However, most of the circuits and many states have effectively developed a dual approach to government-induced crimes in which they allow defendants to invoke both the predisposition-based subjective entrapment defense and either the objective entrapment defense or, more commonly, the outrageous government conduct defense.[29]

The principal purpose of this Article is to present a detailed description of the evolution and scope of each of these defenses, including a critical analysis of their strengths and weaknesses. Based upon this analysis, this Article concludes that the best means for balancing the rights of an induced defendant against the government's need to detect ongoing criminal activity is a dual system of defenses in which the underinclusive subjective approach to entrapment is augmented by one or both of the objective defenses. Part II is a description and critique of the subjective entrapment defense, including a detailed summary of the evidentiary standards surrounding a court's inquiry into a defendant's predisposition to commit the crime. Part III is an analogous treatment of the objective entrapment defense. Part IV presents a description and analysis of two hybrid forms of the entrapment defense, the discrete and composite hybrid approaches. Courts using these approaches, which have been adopted in only a few states, incorporate both subjective and objective prongs into their entrapment analyses. Part V is an examination and critique of the outrageous government conduct defense, including its development, constitutional foundations, and practical applications. Incorporated into this discussion is an analysis of the circumstances in which courts are likely to conclude that the government's conduct has been "outrageous."


A. Introduction: The Birth of the Entrapment Doctrine

Until the turn of the twentieth century, the judiciary staunchly and almost universally rejected the notion that an inducement-based exculpatory defense conferred any benefit on society. In 1864, for example, the New York Supreme Court stated that the entrapment defense "has never availed to shield crime or give indemnity to the culprit, and it is safe to say that under any code of civilized, not to say christian [sic] ethics, it never will."[30] Even as late as 1904, New York's Judge Vann vigorously rejected the entrapment defense in a grand larceny case, stating that "[t]he courts do not look to see who held out the bait, but to see who took it" and arguing that courts "should not hesitate to punish the crime actually committed by the defendant."[31]

Notwithstanding Judge Vann's admonishment, at about that time courts began to recognize the need for a legal defense against increasingly common police attempts to induce otherwise law-abiding people into committing criminal acts.[32] The most notable recognition came in 1915, when the Ninth Circuit decided the case of Woo Wai v. United States.[3]3 In Woo Wai, undercover government immigration officials spent several months attempting to persuade the reluctant defendant, Woo Wai, to transport Chinese citizens into the United States across the Mexican border.[34] When Woo Wai finally acceded, officials arrested him for violating certain immigration laws.[35] In reversing the lower court's conviction, the Ninth Circuit found it determinative that "the suggestion of the criminal act came from the officers of the government," rather than from the defendant.[36] The court based its decision in the public policy that government officials should be dissuaded from encouraging individuals to commit crimes they would not otherwise have committed.[37]

Seventeen years later, in Sorrells v. United States,[38] the U.S. Supreme Court recognized the validity of the entrapment defense.[3]9 In Sorrells, an undercover prohibition agent, accompanied by several of the defendant's friends, visited the defendant's home.[40] During the visit, the agent repeatedly asked to purchase some liquor, but the defendant responded that he "did not fool with whiskey."[41] By coincidence, Sorrells and the agent had served in the same military unit during World War I, and the conversation eventually turned to their common war experiences.[42] The agent then made yet another request for liquor.[43] This time, Sorrells left the house and returned with a half-gallon of whiskey; he was later convicted of violating the National Prohibition Act.[44]

On appeal, the Supreme Court held that the trial court erred by failing to instruct the jury on the entrapment defense and reversed Sorrell's conviction.[45] Although the Court's decision to embrace the entrapment doctrine was unanimous, the justices were divided over its proper foundation and application. The majority and concurring opinions exemplify the two competing approaches to the entrapment doctrine.[46]

Both approaches require the defendant to prove that the government actively induced her to commit the crime charged.[47] However, once she meets this burden of proof, the nature of the inquiry into the two approaches diverges. This divergence stems from differences in opinion over how to distinguish the government's detection of ongoing criminal activity from a seduction of otherwise innocent persons. The Sorrells majority focused on the predisposition of the accused to commit the crime,[48] while Justice Roberts, who wrote the concurring opinion, argued that the emphasis of the inquiry should instead be on the conduct of the government agent in inducing the criminal conduct.[49] These competing approaches, which remain in dispute even today, are the subject of the following sections.

B. Subjective Entrapment: The Prevailing Theory

The gravamen of the subjective approach to entrapment is not the amount of government participation, but rather the defendant's willingness to commit the crime.[5]0 The Sorrells majority, which embraced this approach, concluded that a defendant with no criminal predisposition falls outside the scope of the applicable criminal statute when she would not have committed a crime but for the government's enticement.[51] Oddly, the majority founded its analysis in legislative intent, reasoning that Congress could not have intended to punish "person[s] otherwise innocent" for falling prey to a government-created trap.[52]

Twenty-six years later, a majority of the Supreme Court reaffirmed its subjective view of the entrapment doctrine in Sherman v. United States.[53] The case arose after a government informant met the defendant, Sherman, in a doctor's office, where both were receiving treatments for narcotics addiction.[54] The informant feigned great suffering from narcotics withdrawal and, over the course of several months, repeatedly asked the defendant if he knew of a source for the drugs.[55] Sherman tried to avoid the issue, but eventually acquiesced and was later arrested for selling drugs to the informant.[56] Although the issue of entrapment went to the jury, Sherman was nevertheless convicted.[57]

The Supreme Court unanimously reversed the conviction, holding that entrapment was established as a matter of law, but the justices disagreed concerning the appropriateness of the subjective standard.[58] Chief Justice Warren, who wrote the majority opinion, found that the circumstances surrounding the informant's repeated efforts to persuade the defendant to obtain narcotics constituted inducement.[59] Invoking the subjective approach, he rejected the government's assertion that the defendant's criminal record—a nine-year-old drug sales conviction and a five-year-old possession conviction—demonstrated a predisposition to commit the crime, particularly in light of the fact that the defendant was trying to overcome his addiction at the time of the inducement.[60] Justice Frankfurter, joined by three other justices, concurred in the result of the case but dissented with respect to the majority's use of the subjective approach.[61] He argued that the Sorrells congressional intent justification for a subjective approach was sheer fiction and that an objective approach was necessary for the proper judicial supervision over governmental abuses of power.[62]

Indeed, the Supreme Court has always been strongly divided over the proper jurisprudence with respect to the entrapment doctrine. The case of Hampton v. United States[63] perhaps best exemplifies this division.[6]4 In Hampton, the defendant, having observed needle marks on the arm of a Drug Enforcement Agency (DEA) informant, stated that he knew where to obtain some heroin.[65] The informant subsequently contacted the DEA and arranged for an agent to purchase heroin from the defendant.[66] Coincidentally, a second DEA agent, who was posing as a narcotics dealer, was supplying the defendant.[67] After two separate sales were completed, the defendant was arrested.[68] Upon being convicted, he appealed the jury instruction on the ground that the government's role in both supplying and purchasing the heroin constituted entrapment.[69]

In a plurality opinion authored by Justice Rehnquist, three justices looked only at the defendant's predisposition, rather than the government's conduct, and found that there had been no entrapment.[70] Justice Rehnquist expressly reaffirmed the subjective analysis, stating that the Court, in Sorrells and its progeny, had "ruled out the possibility that the defense of entrapment could ever be based upon governmental misconduct in a case . . . where the predisposition of the defendant to commit the crime was established."[71] In a concurring opinion, Justices Powell and Blackmun accepted the use of the subjective approach in this instance, but expressed strong reservations about the plurality's view that police over-involvement could never, under any circumstances, give rise to an exculpatory defense.[72] In his dissent, Justice Brennan, joined by Justices Stewart and Marshall, argued for the adoption of the objective analysis of entrapment and a reversal of the defendant's conviction on the ground that the DEA's methods were unacceptable.[73]

The Supreme Court's most recent examination of the entrapment doctrine was set forth in the 1992 case of Jacobson v. United States.[74] The United States Postal Inspection Service targeted the defendant, Keith Jacobson, as a potential purchaser of child pornography after his name was found on a mailing list from a California pornographic bookstore.[75] Over a period of twenty-six months, undercover postal inspectors sent Jacobson two sexual attitude surveys, seven letters asking him about his sexual preferences, and two sex catalogues, all from fictitious persons and organizations.[76] Eventually, the defendant ordered a publication called "Boys Who Love Boys" and, following delivery of the magazine, he was arrested for violating the Child Protection Act of 1984.[77] At trial, Jacobson testified that he was unsure of the magazine's contents when he ordered it and that the government had merely succeeded in piquing his curiosity.[78] He raised the defense of entrapment, but was nevertheless found guilty.[79]

In a five-to-four decision, the Supreme Court overturned Jacobson's conviction.[80] Justice White, writing for the majority, concluded that there was inadequate evidence to demonstrate that the defendant was predisposed to violate the law by receiving child pornography through the mail.[81] The Court required the prosecution to prove, beyond a reasonable doubt, that the defendant's predisposition to commit the crime was "independent of the Government's acts."[82] Although the prosecution attempted to meet this burden by showing that Jacobson had previously ordered magazines from the California bookstore, that action was not illegal at the time he placed the order.[83] The majority considered this legal purchase to be "scant if any proof of [Jacobson's] predisposition to commit an illegal act"[84] and concluded that the government had failed to meet its burden of proof with respect to predisposition.[85]

Justice O'Connor, who wrote the dissenting opinion, argued that the issue of entrapment was properly left for the jury and that a reasonable juror could find that Jacobson was predisposed to commit the crime.[86] Furthermore, she maintained that the majority had improperly redefined "predisposition" to exclude any indication of the defendant's intent that comes to light after the government's initial contact with him, even if the government has not yet made any attempt to induce the commission of a crime.[87] Surprisingly, there was no discussion of the objective approach to entrapment in Jacobson.

The Jacobson decision did not change the Court's use of the subjective standard in entrapment cases.[88] However, the Court established that the issue of a defendant's predisposition is to be considered at the moment of the government's first contact, rather than at the moment the government induces the defendant to commit the crime.[89] Thus, the Supreme Court has consistently, if not unanimously, advocated the use of the subjective approach to entrapment.

In addition to the federal courts, about thirty-seven states have followed the Supreme Court's lead by incorporating a subjective inquiry into the entrapment defense, while only thirteen states have adopted some form of objective entrapment.[90]

C. The Nature of the Predisposition Inquiry

The first step in any entrapment inquiry is to determine whether government inducement preceded and encouraged the act of which the defendant is accused.[91] A judicial finding of inducement, which is usually a fairly easy burden for the defendant to meet, suggests that there may be no justifiable reason, either retributive or preventative, for society to punish the defendant.[92] Since most jurisdictions apply the subjective standard, the second, and pivotal, step in a majority of entrapment cases is to determine whether the defendant was predisposed to commit the offense charged.[93]

A predisposition inquiry focuses on when the defendant made the decision to commit the criminal act, which hopefully will provide a reliable indication of whether she made that decision of her own free will.[94] This, in turn, is presumed to be evidence of whether the defendant poses a danger to society.[95] If the defendant made the decision prior to the government's inducement, then she is considered to have had the requisite mens rea and is culpable for her criminal conduct.[96] Conversely, if she made the decision to participate after the government induced her to act, then the inducement is presumed to have been the causal source of her decision and she is not held culpable.[97] The most compelling justification for this distinction is that the principal purpose of a legal penalty is to protect society from those who would harm it, not from those whose wrongful conduct consists solely of a failure to exercise self-restraint in the face of government-generated temptation and encouragement.[98]

The Supreme Court conducted its first predisposition inquiry in Sherman v. United States,[99] in which the defendant had been convicted of selling narcotics.[100] Considering Sherman's hesitancy and the fact that he was seeking treatment for his narcotics addiction at the time of the government's inducement, the Court concluded that his two previous narcotics convictions—one nine years previous and the other five years previous—were not sufficient evidence of his predisposition to sustain his conviction.[101] Although the Court utilized a "totality of the circumstances" methodology, which remains the standard approach for courts applying the subjective standard, the Court never specifically defined predisposition.

In response, lower courts have attempted to provide some guidance to lawyers and trial judges by devising a number of generalized definitions for predisposition. The Supreme Court of Kansas, for example, has stated that predisposition "connotes only a general intent or purpose to commit the crime when an opportunity or facility is afforded for the commission thereof."[102] Similarly, the Second Circuit has posited that "[i]t is sufficient if the defendant is of a frame of mind such that once his attention is called to the criminal opportunity, his decision to commit the crime is the product of his own preference and not the product of government persuasion."[103] The Sixth Circuit has commented that a defendant must only show "a predisposition to commit an offense."[104] Each of these descriptions suggests that it is unnecessary for a predisposed defendant to have had an intent to commit a specific crime at a specific time and place—a general intent to commit a crime is sufficient.

However, definitions offered by other courts suggest that a predisposed defendant must have had a specific intent to commit the crime charged. The Tenth Circuit has defined predisposition as a "defendant's inclination to engage in the illegal activity for which he has been charged, i.e. that he is ready and willing to commit the crime."[105] Similarly, the Seventh Circuit has stated that predisposition "refers to whether the defendant had a readiness or willingness to commit the offenses charged."[106] In its most recent predisposition inquiry, the Supreme Court in Jacobson commented that "the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents."[107] However, there was no discussion of the general/specific intent dichotomy accompanying this remark, so it is unclear whether the Court contemplated that it was making such a distinction.[108]

Thus, while it is firmly established that a predisposition inquiry should focus on "the defendant's state of mind and inclinations before his initial exposure to the government agents,"[109] it has never been explicitly determined that specific intent is necessary to support a finding of predisposition. In practical application, however, most courts require a fairly strong indication that the accused was willing to engage in that particular crime. For example, with regard to evidence of prior criminal acts, courts generally require that there be a "substantial similarity" between the nature of the prior act and the nature of the crime charged before they will admit that evidence as bearing on whether the defendant was predisposed.[110] Although this widely applied "substantial similarity" test is not well-delineated, its purpose is to discriminate between past acts that demonstrate a general criminal intent and past acts that demonstrate a form of specific intent.[111]

D. Types of Predisposition Evidence

Ever since the U.S. Supreme Court recognized the entrapment defense and adopted the subjective standard in Sorrells, evidentiary issues relating to predisposition have been the principal focus of federal court entrapment inquiries.[112] Yet, because of the nebulous nature of any examination of a person's state of mind, there are no infallible means for distinguishing the non-predisposed innocent from the predisposed criminal.[113] As a consequence, courts use a "totality of the circumstances" approach in predisposition inquiries.[114] This approach gives courts the ability to consider all relevant factors, yet it also allows a great deal of judicial discretion and raises the possibility that courts might incorporate irrelevant, incorrect, or misleading information into their analyses.

Several courts have compiled lists of factors appropriate for distinguishing predisposed defendants from non-predisposed defendants.[115] The most detailed of these was produced by the Eighth Circuit in United States v. Dion.[116] The court listed ten such factors:

(1) whether the defendant readily responded to the inducement offered;

(2) the circumstances surrounding the illegal conduct;

(3) "the state of mind of a defendant before government agents make any suggestion that he shall commit a crime;"

(4) whether the defendant was engaged in an existing course of conduct similar to the crime for which he is charged;

(5) whether the defendant had already formed the "design" to commit the crime for which he is charged;

(6) the defendant's reputation;

(7) the conduct of the defendant during the negotiations with the undercover agent;

(8) whether the defendant has refused to commit similar acts on other occasions;

(9) the nature of the crime charged; and

(10) "[t]he degree of coercion present in the instigation law officers have contributed to the transaction" relative to the "defendant's criminal background."[117]

Although such lists provide guidance to courts and help prevent lawyers from overlooking potentially valuable predisposition evidence, they are necessarily generalized and potentially overbroad. Indeed, courts have admitted many types of evidence bearing on predisposition. The most commonly admitted forms of predisposition evidence may be loosely categorized into similar past acts and crimes, response to the inducement, subsequent acts, reputation, and ability to commit the crime.[118]

1. Similar Past Acts: Noncriminal Acts, Criminal Convictions, and Criminal Allegations

In predisposition inquiries, it is important to draw a clear distinction between prior similar acts and prior similar crimes.[119] The use of acts to show that the defendant was predisposed "involves far more dangerous possibilities"[120] and, as a consequence, the use of similar noncriminal acts as dispositive evidence of predisposition was recently foreclosed by the Supreme Court in Jacobson.[12]1 In Jacobson, the court concluded that "[e]vidence of predisposition to do what [is] lawful is not, by itself, sufficient to show predisposition to do what is . . . illegal, for there is a common understanding that most people obey the law even when they disapprove of it."[122]

In contrast, the defendant's history of prior convictions remains a common form of evidence used by the prosecution to prove predisposition.[123] Such evidence is often inadmissible because its probative value is substantially outweighed by the potential for unfair prejudice to the defendant.[124] However, if the evidence is used only to rebut a defense of entrapment and to demonstrate predisposition, then it is admissible under Rule 404(b) of the Federal Rules of Evidence.[125] The rationale for the admission of this evidence in a predisposition inquiry is that recidivism rates suggest that one who has committed a particular type of criminal act is likely to do so again.[126]

Nevertheless, there are limitations on the types of prior criminal acts that can be used as evidence of predisposition. To be admissible, the prior crime generally must either be "similar in kind and reasonably close in time to the crime charged"[127] or, alternatively, it must be so "inextricably intertwined" from a factual perspective that excluding the evidence would leave a "chronological and conceptual void" in the story heard by the court.[128] In addition, like all evidence, its probative value must substantially outweigh its prejudicial effect.[129]

The "similar in kind" and "inextricably intertwined" tests are exemplified by the Seventh Circuit's decision in United States v. Swiatek.[130] Over the course of several months, an undercover federal agent and an informant convinced Swiatek that they were amateur thieves, in part by selling him stolen jewelry and also by soliciting advice from him about what to do with a car that they had supposedly stolen.[131] After a series of meetings, Swiatek eventually sold firearms and bombs to the federal agent.[132] He was subsequently arrested and charged with a variety of federal offenses.[133] At trial, Swiatek raised the defense of entrapment, claiming that the agent had repeatedly asked for help in procuring such weapons.[134]

In response, the prosecution presented several forms of evidence to demonstrate that Swiatek was predisposed to deal in firearms and explosive devices.[135] Among other things, the court admitted evidence of Swiatek's claims to have some degree of expertise with explosive devices, to have owned a garage full of guns before he went to prison, and to have committed several armed robberies.[136] In addition, the court admitted the agent's testimony relating Swiatek's willingness to deal in stolen jewelry and his apparent willingness to deal in stolen cars.[137] Swiatek was found guilty and appealed, partly on the ground that the evidence against him was improperly admitted and unduly prejudicial.[138] For the purposes of the evidence relating to the jewelry and car, the Seventh Circuit found that it had indeed been improperly admitted.[139] Regarding a predisposition inquiry, the court found that a willingness to deal in stolen property was insufficiently similar to the crime of dealing in firearms, and that the past events were not sufficiently factually intertwined with the crime to permit presentation of that evidence.[140] In contrast, the court found that the evidence relating to Swiatek's remarks concerning firearms, explosives, and robberies were sufficiently probative of his predisposition, and therefore admissible, because they were substantially similar to the nature of the crime charged and were made at nearly the same time that the crime occurred.[141]

In addition to demonstrating the application of the "similar in kind" and "inextricably intertwined" tests, the facts of Swiatek serve to introduce another evidentiary issue with respect to the use of past crimes in predisposition inquiries. This is the difference between the prosecution's burden of proof for unproven past crimes, such as Swiatek's alleged dealing in stolen jewelry, and its burden of proof for crimes in which the defendant has been previously tried and convicted. While evidence of a previous conviction must only be "similar in kind" and reasonably close in time to the offense charged,[142] evidence of an unproven past crime must also be accompanied by the introduction of ample evidence for the jury to determine that the defendant actually committed the crime.[143]

This is a relatively low burden of persuasion for the prosecution to meet.[14]4 In Huddleston v. United States,[145] for example, the Supreme Court upheld the admission of evidence suggesting that the defendant had previously sold stolen televisions for the purpose of demonstrating that he had knowingly engaged in the crime of selling stolen videotapes.[146] The primary evidence supporting the prosecution's allegation that the televisions were stolen was "the[ir] low price . . ., the large quantity offered for sale, and [the defendant's] inability to produce a bill of sale."[147] Similarly, in United States v. York,[148] the Seventh Circuit applied this standard and found that the testimony of a witness that merely related the defendant's confession to a similar past crime was admissible, even though the credibility of the witness was debatable.[149]

In effect, then, the prosecution is free to present past crime evidence to the jury as long as it is supported by a mere modicum of proof. This, of course, raises the concern that factually unfounded accusations of past crimes will be erroneously used to weaken defendants' cases. In addition, there is a strong possibility that the admission of past crime evidence, even if it is well-substantiated, will improperly prejudice the jury.

The prevailing wisdom is that evidence pertaining to an individual's history of criminal behavior is relevant to an inquiry into his propensity for engaging in a similar behavior at a later time.[150] Despite its relevance, however, the use of such evidence may improperly prejudice a jury in two different ways.[151] First, members of the jury may infer that the defendant is more likely to have committed the crime charged if she has previously engaged in criminal activity.[152] Second, a juror might conclude that the defendant deserves to be punished for the past crime, regardless of her involvement in the crime charged.[153] Thus, there is a particularly strong tension between relevance and prejudicial effect with respect to the use of past-crimes evidence in predisposition inquiries. Nevertheless, courts are inclined to conclude that the probative value of past-crimes evidence is not substantially outweighed by its potential prejudicial effect, and that it is admissible regardless of its strength or weakness.[154]

2. Response to the Inducement and Opportunity to Withdraw

The defendant's willingness to engage in the crime, or even the defendant's failure to demonstrate reluctance at the time of the government's inducement, may be used by the prosecution as circumstantial evidence to demonstrate predisposition.[155] Indeed, the defendant's response to the inducement, whether she demonstrates strong reluctance, mild reluctance, indifference, or eagerness, is often the most persuasive evidence of her state of mind.[156]

As in the case of United States v. Hunt,[157] this type of evidence is often dispositive when a defendant has admitted the crime but raised a defense of entrapment. J. Wilton Hunt was a state district judge in North Carolina from 1974 until his indictment in 1982 for accepting bribes.[158] Pursuant to an informant's claim that Hunt could be "delivered," an undercover FBI agent, posing as the operator of an illegal gambling operation, arranged to make monthly payments of $1500 to the judge for "protection."[159] When the agent initially made the offer, Hunt's response was merely, "That sounds good."[160] Although he later expressed a few misgivings about the arrangement, the judge continued to accept payments and said that he would consider them to be campaign contributions.[161] In return for the "contributions," he set low bonds for certain people so they could flee, took care of traffic tickets, and used his influence to assist a drug smuggling operation.[162] Following the judge's arrest, he unsuccessfully raised the entrapment defense at trial and was convicted[163] under North Carolina's Racketeer Influenced and Corrupt Organizations (RICO) statute.[164]

On appeal, Hunt argued, among other things, that the evidence of his predisposition to engage in the offenses charged was insufficient as a matter of law.[165] The Fourth Circuit rejected this argument based on the observation that "no significant pressure or cajoling was required to secure the judge's assent," and that he failed to withdraw from the arrangement even though he had ample opportunity.[166] Since Hunt failed to make an adequate showing of reluctance, the Fourth Circuit properly concluded that the jury was free to decide that he was predisposed.[167]

More problematic for courts engaging in predisposition inquiries are cases in which the defendant initially evinces reluctance, then engages in actions that demonstrate a willingness to commit the crime.[168] The critical distinction in such cases is whether the defendant's initial reluctance merely belied a true willingness to participate in the crime, or whether the government coerced an unwilling defendant into acting in an incriminating fashion. Two prominent cases demonstrating this distinction are United States v. Knight[16]9 and United States v. Perez-Leon.[17]0 In Knight, the defendant agreed to sell a shotgun to a government agent, but the agent insisted that he first cut the barrel to an illegal length.[171] Knight initially refused the agent's demand, even though it was undisputed that he needed the money, but acceded after the agent contacted him a second time.[172] After being arrested for possession of a sawed-off shotgun, Knight argued that he had been entrapped.[173] The trial court agreed, concluding that "[t]he Defendant's reluctance to sell such a weapon was overcome by repeated Government inducements and the Defendant's precarious financial condition."[174]

In Perez-Leon, the jury came to a different conclusion based on its determination that the defendant, despite his initial display of reluctance, was a willing participant in the crime.[175] In that case, the defendant declined a government informant's request to participate in a drug sale, stating that "[he had] been burned before."[176] However, he then asked for the informant's phone number and soon became an "eager" participant in the ensuing drug transactions.[177] Based partly on this eagerness and partly on the defendant's apparent expertise in drug-related matters, both the jury and the Seventh Circuit rejected his claim that he was a non-predisposed victim of government inducement.[178]

In addition to emphasizing the defendant's active responses to the government's inducement, the prosecution may also attempt to prove predisposition by arguing that the defendant was given an opportunity to withdraw, but failed to do so.[179] Generally, courts are hesitant to conclude that such a failure is a singularly dispositive indication that the defendant was predisposed.[180] Nevertheless, as in Harrison v. State,[181] a few courts conducting predisposition analyses have given significant weight to the defendant's failure to withdraw.[182]

Winifred Harrison was a guard at the Smyrna Correctional Institution in Delaware.[183] An inmate at the prison, Barlow, who was working as an informant for the state police, became aware that Harrison was violating prison rules by bringing food into the facility.[184] Based only on this information, Barlow approached Harrison and offered her a hundred dollars to smuggle marijuana to him.[185] She eventually acceded and met Barlow's outside contact, an undercover police lieutenant named Williams, to purchase the marijuana.[186] At each of their meetings, Williams offered Harrison the opportunity to withdraw, but she refused.[187] Harrison was arrested after making two deliveries of marijuana to Barlow.[188]

At trial, Harrison unsuccessfully argued that she had not been predisposed to commit the crime and that she had been entrapped.[189] On appeal, the Delaware Supreme Court conceded that the only evidence of Harrison's predisposition was her failure to withdraw, yet it concluded that this evidence was sufficient for the jury to reject her entrapment defense.[190] Consequently, the court affirmed her conviction.[191]

The defendant's immediate response to the government's inducement is one of the most widely used forms of evidence in predisposition inquiries. Its value is that, unlike other types of predisposition evidence, it is probative of the defendant's state of mind at the time of the inducement, rather than at some other time and under different circumstances. In contrast, the value of failure-to-withdraw evidence is that it may indicate the defendant's willingness to engage in the criminal activity even though there has been a passage of time during which she has had an opportunity to carefully weigh the circumstances and the consequences of her actions. However, courts must consider the circumstances surrounding such forms of evidence carefully, for both an initially positive response and a subsequent failure to withdraw may merely suggest a reluctant, or even a fear-induced, submissiveness to an overwhelming inducement rather than an ardent willingness to engage in a crime.

3. Subsequent Acts and Statements

While proof of a defendant's predisposition often pivots on the character of her acts preceding or during the crime, the prosecution may also present evidence that she later engaged in similar activity.[192] Like evidence of prior criminal acts, an admissible subsequent act must either be similar in nature and reasonably close in time to the crime charged, or be "inextricably intertwined" with it.[193] Of course, its probative value must also substantially outweigh its prejudicial effect.[194] The reasoning behind the admission of subsequent act evidence is that "the defendant's continuation of the prohibited conduct after the removal of the government inducement indicates that it was not the government's inducement that motivated the defendant to commit the charged offense, but some other, continuing factor."[195]

As this reasoning suggests, the prosecution often presents subsequent act evidence to show that a defendant has actively engaged in similar illegal conduct even after the government's inducement ceases. In United States v. Burkley,[196] for instance, the government introduced evidence that the defendant sold heroin to an undercover police officer on November 8, partly for the purpose of demonstrating that the defendant had been predisposed when he sold the same officer heroin on September 9.[197] By doing so, the prosecution successfully rebutted the defendant's claim of entrapment, even though the police officer initiated the contact with the defendant.[198]

For the purpose of demonstrating a defendant's predisposition, most courts also admit evidence that she was merely "willing" to engage in similar conduct after the government discontinued its inducement. As in Burkley, the defendant in United States v. Jenkins[199] attempted to raise the entrapment defense after being charged with selling heroin to undercover agents.[200] Although there was no evidence that Jenkins had ever engaged in any other criminal activity, the Fifth Circuit found that he was predisposed merely because he made the statement, "[I]f you need more, I'll be here," after the sale was completed.[201]

Thus, subsequent actions and statements may both be properly admitted to demonstrate a defendant's predisposition.[202] Yet, by admitting this type of evidence, courts sometimes ignore the possibility that the government's inducement and coercion at the time of the crime charged may have engendered the defendant's subsequent "predisposition." For example, the admission of statement evidence ignores the ease with which such statements can be elicited by police officers hoping to defeat the defendant's ability to invoke the entrapment defense. This is particularly true when complaisant remarks such as "[I]f you need more, I'll be here" are considered to be dispositive evidence that the defendant was predisposed.[203] Jenkins made that statement immediately after the transaction was completed, when he could have been flush with the prospect of making a significant amount of money.[204] For the purposes of a predisposition inquiry, an offhand remark made in the heat of such a moment has little relevance to the issue of whether Jenkins was willing and ready to engage in drug trafficking prior to the government's inducement. Despite the Fifth Circuit's holding to the contrary, courts should preclude similar remarks as a matter of law on the grounds of irrelevance or insufficiency, rather than allowing them to foreclose an otherwise well-grounded defense of entrapment.

4. Defendant's Reputation and Hearsay

While the issue of predisposition is most commonly resolved through an assessment of the defendant's actions before, during, and after the time of the inducement, evidence of the defendant's reputation in the community may also bear on the issue.[205] In the past, it was often the prosecution that sought to use reputation evidence to show that the defendant was predisposed.[206] However, as courts are becoming more wary about the prejudicial effects of such testimony,[207] it is increasingly the defendants who are introducing reputation evidence in the hope of bolstering claims of non-predisposition.

This was the situation in United States v. Fedroff,[208] when the defendant proffered reputation evidence to show that, prior to the government's involvement, he had not been predisposed to commit the crimes of mail fraud, extortion, and accepting kickbacks.[209] Joseph Fedroff was the acting superintendent of public works in North Arlington, New Jersey, when FBI agents investigating official corruption targeted that town.[210] An undercover agent, posing as a steel salesman, approached Fedroff and solicited contracts from him.[211] After the town placed its first order, the agent met Fedroff at a local bar and handed him $100, saying "Here's a hundred bucks many thanks Joe . . . We appreciate your business you guys are super O.K."[212] Later, after Fedroff accepted additional payments and gratuities from the agent, he was arrested.[213]

At trial, Fedroff asserted that he had been entrapped and he had two character witnesses testify on his behalf to show his "good reputation and lack of prior involvement in this kind of illegal activity."[214] Fedroff argued that this testimony, considered in light of the fact that he never actually requested money from the agent, was evidence of his non-predisposition.[215] However, the court refused to give an entrapment instruction to the jury and Fedroff was found guilty.[216] On appeal, the Third Circuit agreed that the defendant's evidence of non-predisposition, although not substantial, was enough to warrant the instruction, so it ordered a new trial.[217]

Testimony concerning a person's reputation in the community is an express exception under the Federal Rules of Evidence to the prohibition against the use of hearsay at trial.[218] Nevertheless, the admissibility of reputation evidence to demonstrate predisposition is subject to various limitations, including the omnipresent Rule 403 stipulation that any evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.[219] All federal circuits that have addressed the issue have concluded that the prosecution may not present hearsay evidence of reputation because of the danger of unfair prejudice.[220] As a consequence, the only reputation-related statements that are admissible in federal courts to show predisposition are those that are not hearsay, such as statements made by the defendant herself[221] or by her co-conspirator.[222] Of course, this has no effect on the defendant's ability to present reputation evidence tending to demonstrate non-predisposition.

5. Defendant's Ability to Commit the Crime

Courts have used a defendant's ability to commit the crime to infer predisposition. Courts have also used a defendant's apparent inability to commit the crime to infer non-predisposition. Although these two inquiries are facially similar, it is important to distinguish between them. An ability to commit a crime is often a strong indication of predisposition, while an inability to commit the crime is not a reliable gauge of non-predisposition.

When the defendant committed the crime with particular ease, a jury may use this fact alone to infer that she was predisposed. This commonly takes place in trials for drug trafficking when the defendant was able to deliver large amounts of contraband to undercover police officers in a relatively short period of time.[223] It also commonly occurs when a defendant argues that she was entrapped even though she demonstrated a high degree of expertise in the type of criminal activity with which she is charged.[224] Since ease and expertise tend to demonstrate preparation and past experience, there is a strong rational basis for concluding that the defendant's criminal abilities are a reflection of her predisposition at the time of the government's inducement.

However, the converse is not necessarily true. A defendant's inability to commit a crime may merely demonstrate ineptitude, rather than non-predisposition. Nevertheless, the defense has, on occasion, successfully argued that the inability of the defendant to commit the crime demonstrates non-predisposition. In United States v. Hollingsworth,[225] for example, the Seventh Circuit found that the defendants were not predisposed to engage in international money laundering because they did not have the necessary "underworld contacts, financial acumen or assets, access to foreign banks or bankers, or other assets."[226] For this reason, the court concluded that the defendants were "objectively harmless" and reversed their convictions.[227]

The flaw in the reasoning of the Hollingsworth majority lies in its emphasis on actual ability.[228] Actual ability is irrelevant because an inability to complete the crime does not preclude the possibility that the defendant was an eager, albeit overconfident, participant. The proper focus of a non-predisposition inquiry is not whether the defendant was "objectively harmless," but whether the defendant subjectively perceived herself to have the ability to commit the crime at the time of the government's inducement. Therefore, if a defendant wishes to show non-predisposition using ability evidence, she must demonstrate that at the time of the inducement she did not believe that she would be able to commit the crime.

E. A Critique of the Subjective Approach

In theory, the subjective approach properly distinguishes a willing participant in a criminal venture from an unwary innocent. Its primary advantage is that those who would not have committed a crime on their own are not punished for committing it at the behest of the government,[229] which has extraordinary resources at its command and an unmatched power to coerce unsuspecting individuals.

Despite this advantage, the subjective analysis is not philosophically well-founded. A widely discussed concern is that its legal foundation—congressional intent—is extraordinarily tenuous considering that the defendant has, in fact, engaged in legislatively proscribed conduct.[230] Furthermore, the subjective approach neither offers guidance to the police concerning their conduct in difficult situations nor dissuades improper police inducement of crime.[231] Finally, and perhaps most importantly, the distinction between predisposed defendants and non-predisposed defendants is not predicated on a well-reasoned concept of moral blameworthiness.[232] Although two people might succumb to identical temptations, the subjective approach prescribes that the predisposed defendant is "guilty," while the non-predisposed defendant is "innocent."[233] Yet, there is no reasonable basis for holding persons with criminal records or imperfect reputations to a higher standard of ethical responsibility than those who have avoided, or perhaps merely escaped, being similarly stigmatized.[234]

The subjective approach is also plagued by difficulties in practical application. One of the more vexing problems with the approach is that, in order to demonstrate predisposition, the prosecution may introduce a broad array of otherwise inadmissible evidence dealing with the defendant's prior unsavory or illegal activities.[235] This evidence is often unreliable and highly prejudicial.[236] Exacerbating this problem is the fact that subjective inquiries are notoriously inaccurate and difficult despite the wide variety of evidence used to inquire into the defendant's state of mind. Indeed, judges and juries have repeatedly demonstrated a tendency, when faced with a melange of predisposition evidence, to ignore the "totality of the circumstances" methodology by simply concluding that a single factor is a dispositive indicator of the defendant's predisposition.

For example, in United States v. Akinsanya,[237] the jury found that the defendant was predisposed to sell heroin solely on the basis that he was able to obtain 100 grams of it relatively quickly, despite strong character evidence indicating that he was not predisposed and the notable fact that the government agent's initial attempts to purchase drugs from him failed.[238] Similarly, in United States v. Bogart,[239] the defendant repeatedly expressed an unwillingness to become involved in the narcotics sale for which he was later charged, but nonetheless he was absolutely barred from invoking the entrapment defense at trial solely because his criminal background suggested that he may have been predisposed.[24]0 In Dion, the trial court found that one of the defendants, Lyle Dion, was predisposed to sell eagle parts in violation of federal law based merely on the fact that he had responded to the inducement.[241] However, the Eighth Circuit properly overruled his conviction because it was undisputed that Dion, an impoverished Native American, had never previously killed an eagle and had only responded after undercover agents spent nearly two years offering substantial amounts of money for the parts.[242]

In each of these cases, the defendant was almost certainly disinclined to commit the crime charged at the time of the government's initial contact and inducement. Nevertheless, in each of these cases a single factor (the defendant's ability to commit the crime, his criminal background, and his response to the inducement) was considered by either the judge or the jury to be a dispositive indicator of his predisposition.[243] By ignoring the "totality of the circumstances" methodology when determining the defendant's predisposition, these courts effectively undermined the Supreme Court's stated goal of exculpating the defendant when the crime occurred only because of the government's inducement.[244]


A. Introduction: The Birth of the Objective Approach

The gravamen of the objective view of entrapment is whether the police conduct "falls below standards, to which common feelings respond, for the proper use of governmental power."[245] According to this test, which is also known as the "reasonable law-abiding person approach,"[246] if the government's method of inducement was likely to induce an ordinarily law-abiding citizen to break the law, then the charges should be dismissed even if the accused was ready and willing to commit the offense.[247] Unlike the subjective inquiry, which is an issue of fact for the jury, the objective determination is an issue of law decided by the judge.[248]

The foundation for the objective approach to entrapment is traceable to Justice Brandeis' dissent in the 1928 case of Casey v. United States.[249] Casey, a lawyer, was convicted of illegally purchasing and delivering morphine to prison inmates.[250] After jailers noticed that drug addicts in the prison repeatedly appeared to be under the influence of narcotics following Casey's visits, federal narcotics officers persuaded two informants to approach Casey and ask him to procure morphine for them.[251] They gave Casey money in advance and he later delivered a morphine-soaked towel to one of them.[252] Although a majority of the Court upheld Casey's subsequent conviction, Justice Brandeis voted to reverse it on the ground that "the act for which the Government seeks to punish the defendant is the fruit of [the government agent's] criminal conspiracy to induce its commission."[253] He based his position on the need to protect the integrity of the government and its courts.[254]

Justice Brandeis' reasoning foreshadowed a sequence of minority opinions by various justices, each of whom argued for the use of the objective analysis in entrapment cases. The first of these, of course, was Justice Roberts' concurrence in Sorrells, in which he opined that "the true foundation of [the entrapment] doctrine [is] the public policy which protects the purity of government and its processes."[255] He felt that 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" regardless of the defendant's state of mind when committing the crime.[256]

B. The Nature of the Objective Inquiry and Its Adoption by Various States

Building on Justice Brandeis' and Justice Roberts' reasoning, Justice Frankfurter in Sherman proffered the first explicit statement of an objective entrapment standard:

[I]n holding out inducements [the government] should act in such a manner as is likely to induce to the commission of crime only [those persons already willing to engage in criminal conduct] and not others who would normally avoid crime and through self-struggle resist ordinary temptations. . . . The power of government is abused and directed to an end for which it was not constituted when employed to promote rather than detect crime and to bring about the downfall of those who, left to themselves, might well have obeyed the law.[257]
Even though the objective approach to entrapment would allow culpable defendants to go free, Justice Frankfurter argued that it was "less evil that some criminals should escape than that the Government should play an ignoble part."[258]

In 1973, Justice Frankfurter's formulation of the objective approach was embraced and reiterated by Justice Stewart in his dissenting opinion in United States v. Russell.[259] That case involved a defendant, Russell, who was convicted of illegally manufacturing methamphetamine.[260] Although conceding that he was predisposed to commit the crime, Russell argued that he was entrapped when a government agent supplied an essential chemical for the process, thereby contributing to a criminal enterprise and violating Russell's constitutional right to due process.[261] The majority affirmed Russell's conviction and rejected his due process argument,[262] finding instead that his admission of predisposition was "fatal to his claim of entrapment."[263] In a forceful dissent, Justice Stewart reiterated Justice Roberts' desire to maintain the purity of the government and offered an objective entrapment standard similar to that proposed by Justice Frankfurter:

[W]hen the agents' involvement in criminal activities goes beyond the mere offering of such an opportunity and when their conduct is of a kind that could induce or instigate the commission of a crime by one not ready and willing to commit it, then—regardless of the character or propensities of the particular person induced—I think entrapment has occurred.[264]
Applying this standard, Justice Stewart suggested that Russell was entrapped as a matter of law.[265]

Although the objective approach to entrapment has never commanded a majority in the U.S. Supreme Court, both the American Law Institute and a minority of states have adopted it over the past thirty-five years. The first to do so was the American Law Institute, which incorporated the objective standard into the Model Penal Code (MPC) in 1962.[266] The MPC approach closely traces the Roberts-Frankfurter-Stewart-Brennan formulation of an objective standard by focusing the inquiry exclusively on the actions of the government.[267] It requires the defendant to prove, by a preponderance of the evidence, that her illegal conduct was merely a response to the government's entrapment.[268]

Since the adoption of the objective approach by the American Law Institute, thirteen states have followed suit either through judicial pronouncement or legislative enactment.[269] The first state to do so was Alaska, which adopted the objective standard in 1969 when its Supreme Court decided the case of Grossman v. State.[270] Before presenting a historical review of the debate over the objective and subjective approaches, the court stated that "the underlying basis of entrapment is found in public policy."[271] It rejected the reasoning of the Sorrells majority, arguing that "[t]o speak of entrapment as an implied statutory condition, and then to focus inquiry on the origin of intent, the implantation of criminal design, and the predisposition of the defendant does not make much sense."[272] Instead, the court explicitly adopted the objective approach, concluding that "[a]n external standard, if it can be achieved, is certainly preferable to a doctrine founded in theoretical riddles."[273]

Most states that have adopted the objective approach to entrapment have done so by legislative enactment. In the early 1970s, for example, Hawaii, Pennsylvania, North Dakota, Utah, Texas, and Arkansas all promulgated statutes requiring the application of the objective standard.[274] Typically, these statutes are modeled after the MPC's formulation[275] or on Justice Frankfurter's opinion in Sherman.[276] In recent years, movement towards the adoption of an objective approach has waned, perhaps because the subjective view has continued to be a strongly entrenched tenet of the U.S. Supreme Court.[277]

C. A Critique of the Objective Approach

The principal advantage of the objective inquiry "may simply be that it avoids the problems of the subjective" approach.[278] The focus of the inquiry is wholly upon the facts of the case and the legitimacy of the government's actions, rather than on the state of mind or prior conduct of an individual.[279] Not only is the factual inquiry thereby simplified, but the judge may also properly exclude prejudicial evidence pertaining to the defendant's reputation, criminal activities, and prior convictions.[280] Furthermore, the objective approach leads to greater equity of treatment between similarly situated defendants than does the subjective approach. As Justice Frankfurter stated in Sherman, "[S]urely if two suspects have been solicited at the same time in the same manner, one should not go to jail simply because he has been convicted before and is said to have a criminal disposition."[281] By shifting the focus of the inquiry away from the defendant and onto the government's actions, the objective inquiry circumvents this unfairness.

In addition, the objective approach enables judges to critique and correct the past actions of the police, thereby helping to deter future police misconduct.[282] As a consequence, the consistent application of an objective standard would eventually allow the judiciary to precisely define the outer limits of acceptable police behavior. It was this characteristic that compelled Justice Roberts in 1932 to argue for the adoption of an objective approach to entrapment.[283] "[U]nlike the fiction of contravening legislative intent by finding an entrapped defendant guilty" under the subjective approach, the objective approach places restraints on society's and Justice Roberts' predominant concern of governmental overreaching.[284]

A difficulty with the objective approach is that it places a great deal of emphasis on the behavior of a hypothetical, reasonable law-abiding person.[285] For example, the Alaska Supreme Court in Grossman focused its inquiry on "persuasion or inducement which would be effective to persuade an 'average person,' other than one who is ready and willing, to commit such an offense."[286] As a consequence of this emphasis, the objective standard may be too abstract and difficult to apply.[287] In fact, ten years after its Grossman decision, the Alaska Supreme Court was forced to admit that:

we have come to realize that there are certain difficulties in applying the [average person] standard. An "average person" probably cannot be induced to commit a serious crime except under circumstances so extreme as to amount to duress. Yet it is clear that entrapment may occur where the degree of inducement falls short of actual duress.[288]
To reduce this problem, the Alaska Supreme Court shifted the emphasis of its objective inquiry by indicating that the entrapment defense is appropriate when there has been "unreasonable or unconscionable efforts on the part of the police to induce one to commit a crime."[289]

Perhaps the most compelling criticism of the objective inquiry is that it is overinclusive.[290] That is, by focusing the inquiry exclusively on the conduct of the government, it relieves defendants of liability regardless of their degree of culpability or predilection for committing the offense.[291] Thus, an indurate criminal might be "acquitted at a substantial cost to the deterrent credibility of" the criminal justice system and in contravention of society's concept of fair justice.[292]


A few states have developed alternative entrapment doctrines that include both objective and subjective elements.[293] The New Jersey, Florida, Indiana, and North Dakota legislatures have all promulgated hybrid entrapment statutes, while New Hampshire and New Mexico have adopted hybrid approaches by way of judicial pronouncement.[294] The ultimate intent underlying the adoption of these hybrid approaches is to reap the benefits of both the subjective and objective inquiries, while minimizing the problems associated with each.

A. The Composite Hybrid Approach

In New Jersey, Indiana, and New Hampshire, the entrapment standard is a mixture of the subjective and objective approaches into a single two-pronged inquiry.[295] This standard, which will be termed the "composite hybrid approach," is exemplified by the Indiana entrapment statute:

(a) It is a defense that:

(1) the prohibited conduct of the person was the product of a law enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and;

(2) the person was not predisposed to commit the offense.

(b) Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.[296]

Typically, to successfully raise a defense of entrapment under the composite approach, the defendant must first demonstrate either that the government's inducement created a substantial risk that the average person would commit the crime, or that its conduct was so egregious as to "impugn the integrity of the court that permits a conviction."[297] Second, the defendant must prove no predisposition to commit the crime.[298]

While the various creators of the composite hybrid approach presumably aspired to maximize the fairness and benefits associated with the entrapment defense, they merely succeeded in negating the benefits of the individual subjective and objective approaches. The primary societal benefit of the subjective standard is that those who would not commit a crime on their own are not punished for committing it at the behest of the government.[299] However, this benefit is significantly diminished under the composite approach when an additional burden is placed on the defendant to prove that the police used improper or egregious methods to coerce her behavior. One of the principal advantages of the objective standard is that it avoids some of the difficulties of the subjective standard—there is no need to introduce prejudicial evidence of the defendant's reputation or past behavior, and there is greater equity of treatment between predisposed and non-predisposed defendants.[300] These advantages, too, are lost under the composite hybrid approach because the defendant is still required to answer the subjective inquiry concerning her predisposition.

In addition, by placing a two-pronged burden on the defendant, a composite entrapment defense is likely to be underinclusive. "Predisposed" defendants might still fall victim to egregious police tactics, while non-predisposed defendants will face the significant burden of meeting an abstract and unclear "average person" standard. Furthermore, because it is underinclusive, there will be little deterrent effect on government overreaching. While courts will still have opportunities to critique the inducement tactics used by the police, many defendants will nevertheless be convicted for failing to meet the subjective prong. In such instances, the judicial criticism will be relegated to the status of dicta, which police officers will have little incentive to heed.

Indiana, while maintaining a composite hybrid approach to entrapment, has attempted to avoid the problem of underinclusiveness by shifting the burden of persuasion to the prosecution.[301] The prosecution must rebut a defense of entrapment by showing both that the level of police inducement did not affect the free will of the defendant and that the defendant was predisposed to commit the crime.[302] This burden of persuasion is not always as insurmountable as it might be, since the Indiana Supreme Court has declared that the prosecution may meet it by "show[ing] circumstances which establish the criminal predisposition of the accused including his possession of large quantities of contraband, his ability to access contraband in a short time, his knowledge of prices and sources and his manner of conducting the sale of contraband itself."[303]

Despite this apparent easing of the burden of persuasion, Indiana's approach has the potential to be seriously overinclusive. Every defendant that can show the slightest inducement on the part of the government will raise the entrapment defense and then sit back to see if the prosecution can meet its burden. If the state fails then her entrapment defense succeeds. Furthermore, if the prosecution presents a substantial amount of evidence to demonstrate predisposition, and this evidence is not unlawful conduct sufficiently similar to the crime charged, then the case against the defendant may be reversed because the jury was unduly prejudiced.[304]

The 1994 case of Dockery v. State[305] illustrates the potential difficulties of Indiana's approach. The case arose when an undercover officer told Jackson that he wanted to purchase cocaine.[306] Jackson then took the officer to the street in front of the home of the defendant, Dockery.[307] After speaking only with Jackson, Dockery weighed out a specific amount of cocaine, carried it out to the officer's car, and sold it to him for $250.[308] Dockery was subsequently arrested. In response to Dockery's defense of entrapment, the prosecution presented evidence of his predisposition, including his arrest three years previously for the possession of marijuana and an illegal firearm.[309] In addition, the prosecution presented the testimony of a police officer who stated that stated Dockery had sold cocaine to a confidential informant two years previously.[310] Although Dockery was found guilty the Indiana Supreme Court reversed the conviction, concluding that the prosecution's evidence was not sufficiently similar to the crime charged to prove that Dockery was predisposed to deal in cocaine.[311] Furthermore, the court held that the prosecution's evidence of predisposition had a "prejudicial impact on the mind of the average juror," which also warranted a reversal.[312]

According to the facts presented in Dockery, the defendant was clearly willing and able to make the transaction on short notice, as Jackson apparently knew when he took the officer to Dockery's house.[313] Yet, contrary to its own precedent, the court made no attempt to address the defendant's "possession of large quantities of contraband, his ability to access contraband in a short time, his knowledge of prices and sources and his manner of conducting the sale of contraband itself."[314] As a consequence, not only was the prosecution unable to meet its burden of proof in what appears to be a relatively straightforward case, but it also, in the opinion of the Indiana Supreme Court, improperly prejudiced the jury in its attempt to do so.[315]

The Dockery case demonstrates how placing the burden of persuasion on the state in a composite hybrid approach leads to a variety of problems. Too many predisposed and eager defendants will be acquitted pursuant to unjustified claims of entrapment because the prosecution will often be unable to meet the dual burden of proving both predisposition and that the level of police coercion did not affect the defendant's free will. One of the attendant problems is that the prosecution will be forced to present highly prejudicial evidence to the jury, even though it might not meet the ill-defined "sufficiently similar" standard, which is applied by the Indiana courts to scrutinize evidence of predisposition.[316] This, in effect, gives the defendant two bites at the apple. Either her claim of entrapment succeeds or, if not, her conviction may be reversed because prejudicial evidence was presented to the jury.

B. The Discrete Hybrid Approach

In the hybrid approach used in Florida, North Dakota, and New Mexico, a defendant is not required to satisfy both the subjective and objective prongs of the inquiry.[317] Rather, each prong is considered to be an independent justification for establishing a successful entrapment defense.[318] According to New Mexico case law, for example, a defendant may prevail "either by showing lack of predisposition to commit the crime for which he is charged, or, that the police exceeded the standards of proper investigation."[319] Similarly, according to Florida and North Dakota jurisprudence, the burden of persuasion falls on the defendant, who must satisfy either the subjective or the objective prong by a preponderance of the evidence.[320] This form of the entrapment defense is termed the "discrete hybrid approach."

The discrete hybrid inquiry is a relatively recent and little-used innovation, yet its benefit to defendants is clear. As compared to the composite hybrid approach used in New Jersey and New Hampshire, it gives a defendant greater latitude to assert an entrapment defense while reducing the burden of persuasion. It provides the non-predisposed defendant with a defense against the government's overwhelming power to coerce, and also gives the non-predisposed defendant a defense against egregious police conduct.

A recent Florida case, Robichaud v. State,[321] illustrates the advantages of the discrete hybrid inquiry. The defendant, Robichaud, took part in three sales of cocaine, but only after a confidential informant and undercover agents "threatened [him] with bodily harm, took away his residence and then, when [he] was jobless and virtually homeless, offered him a job and a residence on the condition that he obtain cocaine for them."[322] Although Robichaud was initially found guilty, the district court reversed his conviction after finding that he was not predisposed to engage in drug dealing.[323] Thus, Robichaud successfully raised an entrapment defense by meeting the subjective prong of Florida's discrete hybrid inquiry.

Suppose, however, that Robichaud's assertion of non-predisposition had failed, perhaps because the prosecution presented reputation evidence suggesting that he had sold drugs in the past. In the federal courts and in most state courts, where either the subjective or the composite hybrid approach is favored, his attempt to rely on the defense of entrapment would be unsuccessful. Under Florida's hybrid inquiry, however, he would have had a second, and arguably well-deserved, opportunity to assert the defense on the ground that the police used egregious tactics when inducing him to commit the crime.

The discrete hybrid approach preserves most of the advantages of both the objective and subjective standards. As in jurisdictions applying the subjective standard, defendants who would not commit a crime on their own initiative are not punished for committing it because of undue coercion by the government.[324] As in jurisdictions applying the objective standard, predisposed and non-predisposed defendants are treated equitably under the law, and there is greater opportunity for the courts to deter police misconduct.[325]

Nevertheless, the discrete hybrid inquiry presents a few difficulties. Like the subjective approach, it may allow the prosecution to introduce evidence that is highly prejudicial to the defendant.[326] In addition, if the defendant relies on the objective prong, she must still fulfill the requirements of the abstract and ill-defined "average person" standard.[327] Also, from the prosecution's perspective, the discrete hybrid approach may be overinclusive because it gives defendants, in effect, two separate exculpatory defenses founded on the entrapment doctrine. However, the most compelling objection to this approach is that, like the objective standard, it exonerates defendants who were eager to commit the offense simply because the government's methods of inducement were improper.[328]


A. Introduction: The Birth and Nature of the Outrageous Government Conduct Defense

In 1962, Jack Courtney, a special investigator with the United States Treasury Department, was told by an informant that two men, Mike Thomas and John Becker, were attempting to make a "syndicate" connection so that they could sell bootleg whiskey that they had manufactured.[329] Courtney assumed the role of a gangster, gained the trust of the two men, and eventually bought eight gallons of whiskey from them.[330] Later, following a raid on Thomas' property near Sacramento, California, where their still was located, Becker and Thomas were arrested and sentenced to six months in jail.[331]

A month after they were released, Becker and Thomas, still unaware of Courtney's true identity, contacted him and asked to resume their illicit dealings.[332] Courtney agreed.[333] However, as they had trouble setting up a new still, over the course of the next two-and-a-half years, Courtney repeatedly contacted the men and offered to provide them with equipment, a still site in Nevada, an operator, and plastic containers.[334] Although Becker and Thomas did not accept any of these offers, they did purchase 2000 pounds of sugar from Courtney at wholesale prices for use in their operation.[335] In 1966, after the defendants had made three new deliveries of bootleg whiskey to Courtney, he again had them arrested.[336]

Becker and Thomas were convicted again, but, on appeal to the Ninth Circuit, argued that they had been entrapped as a matter of law.[337] The court of appeals properly found that it was foreclosed from accepting their entrapment defense since the two were unequivocally predisposed to manufacture bootleg whiskey.[338] Nevertheless, stating that "[w]e do not believe [that] the Government may involve itself so directly and continuously over such a long period of time in the creation and maintenance of criminal operations, and yet prosecute its collaborators," the court reversed their convictions.[339]

Although the Ninth Circuit never mentioned a statutory or constitutional basis for its holding, the Greene decision is generally regarded as the first application of the outrageous government conduct defense.[340] Strictly speaking, a claim of outrageous government conduct is not a defense because it results in a dismissal of the criminal charges regardless of their merits.[341] Nevertheless, it is commonly referred to as a defense, so this widely accepted nomenclature will be used here.

Like the entrapment defenses, a successful claim of outrageous government conduct exculpates the defendant, even though she may well have committed all of the elements of the crime.[342] Furthermore, like the objective view of entrapment, the court focuses its inquiry wholly on the government's role in the defendant's behavior and the propriety of the government's actions, rather than on the defendant's state of mind.[343] However, unlike the judicially created entrapment defenses, the constitutionally grounded outrageous government conduct defense has neither been explicitly adopted by the U.S. Supreme Court nor universally accepted by lower courts.[344] In those jurisdictions where it is accepted, the defense has been grounded either in the Due Process Clauses of the Fifth and Fourteenth Amendments or in analogous state constitutional provisions.[345]

Although there are facial similarities between the outrageous government conduct defense and the objective approach to entrapment, there are also important differences. Most significantly, the outrageous government conduct defense is narrower in its application than the objective entrapment defense. In comparison to the threshold requirements of a successful objective entrapment defense, due process jurisprudence demands a significantly higher degree of governmental misconduct before the outrageous government conduct defense can be successfully invoked.[346] Specifically, the standard for "outrageousness" is a degree of governmental misconduct that is "shocking to the universal sense of justice,"[347] while a successful objective entrapment claim merely requires that the government's method of inducement was likely to induce an ordinary, reasonable, law-abiding citizen to break the law.[348] The consequence of this difference is that, unlike claims of objective entrapment, claims of outrageous government conduct are rarely successful.[349]

B. Constitutional and Precedential Foundations of the Defense

1. Substantive Due Process and Official Misconduct

The Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law."[350] On its face, the Due Process Clause only guarantees procedural protection; however, the U.S. Supreme Court has also invoked it to protect certain substantive rights.[351] The protection of substantive rights stems from the Court's long-held tenet that due process is "implicit in the concept of ordered liberty."[352] The Court has invoked substantive due process in cases of egregious deprivations of property and liberty, regardless of whether the deprivation is caused by legislative enactments, administrative actions, or official misconduct.[353]

In criminal cases, a defendant's right to due process is violated when the government has ignored principles of fundamental fairness.[354] Unfortunately, there is no well-established dividing line between fundamentally fair and unfair government behavior.[355] Courts make fundamental fairness determinations on a case-by-case basis, which means that the substantive due process doctrine with respect to official misconduct is unclear and difficult to apply.[356]

The authority of the judiciary to supervise the administration of the criminal justice system was addressed by the U.S. Supreme Court in McNabb v. United States.[357] In that case, the Court relied on the "'fundamental principles of liberty and justice' which are secured by the Fourteenth Amendment" to reverse the murder convictions of three defendants because their post-arrest confessions had been improperly coerced.[358]

The Supreme Court invoked substantive due process to limit police misconduct again in the case of Rochin v. California.[35]9 In Rochin, police officers entered the defendant's home based on a suspicion that he was selling narcotics.[360] They saw two capsules on a table in the bedroom, but Rochin swallowed them.[361] After unsuccessfully attempting to retrieve the capsules from his throat, the police took the defendant to the hospital and had his stomach pumped.[362] The retrieved capsules were used as evidence at his trial and he was convicted of the possession of an illegal narcotic.[363] The district court of appeal affirmed the conviction and the California Supreme Court denied Rochin's petition for a hearing.[364]

Justice Frankfurter, for a unanimous Court, began his analysis by observing that the "Due Process Clause inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings . . . to ascertain whether they offend those canons of decency and fairness which express the notions of justice."[365] Regarding the actions of the police officers, Justice Frankfurter concluded that illegally breaking into Rochin's house, forcibly attempting to extract the pills from his throat, and using an invasive procedure to pump his stomach shocked the conscience.[366] The Court held that such egregious behavior constituted a deprivation of Rochin's liberty without due process and reversed his conviction.[367]

Although McNabb and Rochin exemplify the Supreme Court's past willingness to broaden the applicability of substantive due process in cases of governmental misconduct, the Court appears to have reversed that trend in recent years.[368] For example, in DeShaney v. Winnebago County Department of Social Services,[369] the Court rejected a due process claim against a county social services department for failing to protect a child from his habitually abusive father, even though the department apparently knew of the danger to the child.[370] The Court concluded that a "[s]tate's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause."[371] Furthermore, in Whitley v. Albers[37]2 and Graham v. Connor,[373] the Court held that, when appropriate, claims of excessive force by government officials must be analyzed under the Eighth and Fourth Amendments, respectively, rather than under the more general due process jurisprudence.[374]

Thus, there is a solid constitutional and precedential foundation upon which the Supreme Court could adopt a substantive-due-process-based affirmative defense for the purpose of policing pre-arrest official conduct. Nevertheless, it is unclear whether the present Court would uphold such a defense. Over the past twenty-five years, however, there have been a few decisions suggesting that at least some members of the Court believe that the outrageous government conduct defense is both constitutional and prudentially sound.

2. Supreme Court Precedent Addressing the Defense

In 1969, an undercover federal agent met with Richard Russell and two others suspected of unlawfully manufacturing methamphetamine.[375] The agent, who was posing as a member of a criminal organization, offered to supply the three with a chemical, phenyl-2-propanone (propanone), in exchange for one-half of the drug produced.[376] The chemical, which is an essential ingredient in the manufacture of methamphetamine, is legal but difficult to obtain.[377] The defendants agreed to the arrangement, then gave the agent a sample of the drug that they had manufactured previously.[378] Two days later, the agent gave the defendants propanone and watched them manufacture more of the drug in their laboratory.[379] After the defendants were arrested, an entrapment instruction was given at trial, but they were convicted nonetheless.[380]

On appeal, the Ninth Circuit reversed the conviction because the undercover agent had supplied the necessary chemical, which the court argued was an "intolerable degree of governmental participation in the criminal enterprise."[381] The Supreme Court, however, rejected the Ninth Circuit's reasoning and reinstated the conviction.[382] Justice (now Chief Justice) Rehnquist, for the majority, reasoned that the entrapment defense was "not intended to give the federal judiciary a 'chancellor's foot' veto over law enforcement practices of which it did not approve."[383] Interestingly, however, Justice Rehnquist also stated that "[w]hile we may some day be presented with a situation 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, the instant case is distinctly not of that breed."[384] This "some day" dicta, as the passage has come to be known, has been so widely cited in connection with the outrageous government conduct defense that it has effectively become a battle cry for the defense's proponents.[385]

Justice Rehnquist's seemingly contradictory statements in Russell created confusion among the lower courts. For example, while most courts of appeals continued to recognize only the subjective entrapment defense, the Second Circuit interpreted the "some day" dicta as creating a supplemental due process defense that empowered courts to regulate the conduct of police and other officials.[386] Perhaps as a consequence, the Supreme Court granted certiorari on another official conduct-related case, Hampton v. United States,[387] less than three years later.

Hampton was convicted of selling heroin to undercover DEA agents, even though a government informant allegedly supplied the heroin to him.[388] The defendant admitted that he was predisposed to commit the crime but, relying on the Russell "some day" dicta, he argued that the government's actions in both supplying him with the heroin and purchasing it were so outrageous that it violated his right to due process.[389] The Court affirmed Hampton's conviction and, in the process, merely increased confusion in the lower courts.[390]

Justice Rehnquist wrote a three-justice plurality opinion in Hampton. In striking contrast to his dicta in Russell, Justice Rehnquist attempted to foreclose the use of the outrageous government conduct defense by opining that due process protections "come into play only when the Government activity in question violates some [constitutionally] protected right of the Defendant."[391] However, both of the concurring justices[392] and the three dissenting justices[393] opined that the outrageous government conduct defense is a valid exercise of the Fifth and Fourteenth Amendments' Due Process Clauses. As a result, Justice Rehnquist's attempt to repudiate his Russell "some day" dicta effectively failed, leaving the lower courts free to form their own opinions of the defense.

C. Lower Court Adoption of the Outrageous Government Conduct Defense: Competing Perspectives

1. The Prevailing Perspective: The Defense Is a Valid Exercise of Substantive Due Process

Five different federal courts of appeals have expressly accepted the constitutional validity of the outrageous government conduct defense, although only the Third and Ninth Circuits have actually invoked it to dismiss an indictment.[394] These five courts of appeals, which also include the First,[395] Seventh,[396] and Tenth Circuits,[397] have grounded the defense in substantive due process, although the judiciary's "supervisory powers" are a possible alternative foundation.[398]

The two seminal outrageous government conduct cases are United States v. Twigg[39]9 and United States v. Bogart.[40]0 In Twigg, a government agent named Kubica suggested to the two defendants that they all start an illegal methamphetamine manufacturing operation.[401] Once the defendants agreed, Kubica located a site, supplied equipment and chemicals, and directed the manufacturing process.[402] After the drugs were produced, federal agents then arrested the defendants, and they were subsequently convicted in the district court.[403] On appeal, the Third Circuit summarized the Supreme Court's decisions in Russell and Hampton, then reversed the defendant's convictions on the ground that "[f]undamental fairness does not permit us to countenance such actions by law enforcement officials and prosecution for a crime so fomented by them will be barred."[404]

In Bogart, the defendant was the subject of a joint investigation by California and Utah authorities regarding his alleged involvement in a fraudulent real estate scheme.[405] In addition, he was involved in a legitimate business relationship with a partner, Ralph LaQuay, for the purpose of selling posters in California.[406] Over the course of five months, authorities in Utah arrested Bogart on four occasions on charges of questionable merit.[407] Because he was unable to post bail, Bogart spent the entire time in jail.[408] Soon after Bogart's first arrest, a San Francisco police officer named Kathleen Thaxton convinced LaQuay to become an informant.[409] LaQuay, following Thaxton's instructions, then falsely told Bogart that he could not afford to pay their poster supplier because he had invested his money in a quantity of cocaine.[410] During the series of phone calls that followed, Bogart repeatedly expressed his need for the poster money to post bail, yet also indicated an unwillingness to become involved in a narcotics sale.[411] He eventually acquiesced and agreed to trade the cocaine for 3500 posters.[412] Both Bogart and the poster supplier were later arrested for conspiring to deal in narcotics.[413]

At trial, Bogart was prevented from successfully raising a defense of entrapment because of his criminal background, which suggested that he was predisposed.[414] Instead, Bogart moved for dismissal on the ground that the government's conduct was so outrageous that it violated his right to due process.[415] The court denied the motion and, even though the judge conceded that he did not approve of the government's conduct, Bogart was convicted.[416] While considering Bogart's appeal, the Ninth Circuit carefully outlined the applicability of the outrageous government conduct defense, conceding that "[t]he point of division at the margins between police conduct that is just acceptable and that which goes a fraction too far probably cannot be usefully defined in the abstract."[417] Nevertheless, the court reaffirmed the viability of the defense and remanded the case for additional factual inquiry into possible violations of Bogart's due process rights.[418]

As suggested by the Ninth Circuit in Bogart, the scope and applicability of the outrageous government conduct defense is unclear in ambiguous situations.[419] Because there is little precedent upon which they may base their decisions, courts accepting the constitutional validity of the defense necessarily make determinations of outrageousness on a case-by-case basis.

The Florida Supreme Court, for example, has recently applied an unusually broad interpretation of outrageousness and a liberal application of the defense.[420] The court may invoke the defense to reverse defendants' convictions when law enforcement violates criminal law during the course of making a case against the defendant.[421] The court overturned a defendant's conviction for purchasing crack cocaine because the Broward County Sheriff's Office manufactured the crack in its own laboratory rather than using previously confiscated crack.[422] Although the source of the drug had no bearing on the defendant's criminal activities, the court concluded that due process provides a "defense to overturn criminal convictions as a check against outrageous police conduct."[423]

The Florida approach notwithstanding, it is clear from the rapidly growing amount of dicta concerning the defense that there are two situations in which courts are likely to find that a criminal defendant's due process rights have been violated by pre-arrest governmental conduct.[424] The first situation is when the government essentially generates a crime for the purpose of obtaining a conviction, rather than merely infiltrating an existing criminal enterprise.[425] Such a circumstance is exemplified by Twigg, in which the court found a due process violation because the government agent created the drug manufacturing scheme, supplied necessary materials, and directed the manufacturing process solely for the purpose of arresting the other participants.[426] Although under this doctrine the government may not engineer and direct the criminal enterprise from start to finish,[427] it is not a due process violation for the government to induce a defendant to repeat, continue, or expand previous criminal behavior.[428]

The second situation in which courts are likely to find a due process violation is when the government uses excessive coercion to induce a person into committing a crime.[429] This is perhaps best exemplified by Bogart, in which the defendant asserted that he was coerced into participating in a drug transaction in order to gain his freedom from a wrongful and pretextual incarceration.[430] The Ninth Circuit held that those facts, if proven, would constitute outrageous government conduct in violation of the Due Process Clause.[431] Most courts have indicated that the government's coercion must be particularly egregious, as it apparently was in Bogart, before they will find that the defendant's due process rights have been violated.[432] However, a few courts have been more liberal in their approach. In United States v. Batres-Santolino,[433] for example, the court indicated that a mere financial inducement by the government, if large enough, could be sufficiently egregious to violate due process.[434]

In summary, most courts appear to have concluded that the outrageous government conduct defense is a valid and necessary exercise of substantive due process protection. Although the scope of the defense remains poorly delineated, general guidelines are emerging and, as a consequence, defendants are raising it with increasing frequency.

2. The Minority View: The Defense Is Unconstitutional

In contrast to the majority of the courts of appeals and a number of states, the judges of the Sixth and Seventh Circuit Courts of Appeals have explicitly rejected both the constitutionality and the merits of the outrageous government conduct defense.[435] These judges have presented a variety of arguments to support their position.

One of the more compelling of these arguments is that substantive due process protections should apply only when the government has violated a defendant's specifically enumerated constitutional right.[436] In essence, the contention is that a reversal of a conviction should rest only on a violation of a personal right guaranteed by the Constitution, rather than on a right that has been invented for the occasion.[437] Supreme Court case law supports this argument. Most significantly, in United States v. Payner,[438] justices concluded that evidence that cannot be excluded under Fourth Amendment jurisprudence cannot, in the alternative, be excluded on grounds of due process.[439] The majority opinion quoted, with approval, Chief Justice Rehnquist's previous assertion in Hampton that the limitations of the Due Process Clause come into play only when governmental activity violates some constitutionally protected right of the defendant.[440]

A related due-process-based argument against the outrageous government conduct defense was presented by Judge Suhrheinrich in United States v. Tucker.[441] In effect, Judge Suhrheinrich reviewed the Supreme Court's treatment of the entrapment defense and concluded that governmental inducement could never be a due process violation.[442] Based on the fact that the Supreme Court chose to ground the subjective entrapment approach in legislative intent rather than in the Constitution, he concluded that "[i]f due process is not offended by convicting those who are not predisposed, a priori it is not offended by convicting those who are predisposed."[443]

A third argument against the adoption of the outrageous government conduct defense is that it violates the separation of powers doctrine.[444] According to this argument, the judiciary should not be able to apply a "chancellor's foot veto" over executive conduct of which it disapproves because the management of executive conduct is appropriately left to the legislature.[445] Furthermore, because Congress has already "implicitly curbed the Executive Branch by intending, as an implied part of each criminal statute, that no conviction may be had against one who was induced by the government to commit a crime unless the government proves . . . that [she] was predisposed," the issue with regard to the federal courts is arguably settled.[446] Specifically, federal courts are arguably precluded from applying substantive due process principles to exculpate an induced defendant because the legislative intent is clear—the gravamen of a proper judicial inquiry is the defendant's subjective predisposition and nothing more.[447]

The final argument against the adoption of the outrageous government conduct defense is that it creates problems of consistency in the courts.[448] According to this argument, there can be no uniform application of the defense because it is not possible to formulate a precise definition of outrageousness.[449] As a consequence, judges would simply "vote their lower intestines," which is an inappropriate means of applying the Due Process Clause.[450]


To protect society and obtain evidence against unwary criminals, government agents must engage in undercover activities and inducement. However, starting with the Sorrells opinion, the Supreme Court has consistently recognized that this need to use "[a]rtifice and stratagem" must be offset by a means for protecting unwary innocents from being lured into criminal behavior by the government's actions.[451]

A majority of the Court has always held the view that the subjective approach to entrapment, by itself, provides an adequate counterbalance to the government's overwhelming power and ability to entice.[452] By rejecting the objective approach to entrapment, it has also implicitly adopted the position that there is little need for the judicial branch to directly police the enforcement activities of the executive branch.[453]

Despite the Supreme Court's view, most jurisdictions in the United States are operating under a dual system of defenses in which the subjective approach to entrapment is augmented by the outrageous government conduct defense.[454] This dual system gives the judicial branch the means by which it can both protect unwary innocents[455] and prevent the executive branch's efforts at undercover investigation and inducement from becoming truly reprehensible.[456]

Although the doctrinal foundation of the outrageous government conduct defense differs from that of the entrapment defenses, a primary purpose of each is to prevent government officials from playing a causal role in criminal or other reprehensible behavior. The subjective approach to entrapment accomplishes this through an examination of the initial willingness of an induced defendant. The objective approach to entrapment and the outrageous government conduct defense each accomplish this by allowing courts to scrutinize the government's actions directly.

In practical application, the subjective approach is the least reliable of the three defenses because a factual inquiry into a defendant's thought processes is unavoidably inaccurate. The consequence is that the subjective approach is underinclusive—defendants may be convicted even when the government's actions almost certainly caused the crime. In contrast, a factual and objective inquiry into the government's actions is far less complex and more accurate. However, even the most simplistic objective inquiry is subject to misapplication because it is often difficult for courts to accurately distinguish between government actions that are outrageous, government actions that would induce criminal behavior, and government actions that merely constitute artifice and strategem.

The most effective means for minimizing the government's involvement in crime and achieving fair verdicts, then, is for courts to retain the flexibility to conduct a dual subjective/objective inquiry. Under such a dual inquiry, the judge or jury first engages in an objective examination into whether the government's actions were either outrageous or would cause an otherwise innocent person to engage in the crime charged, depending on the applicable law of the jurisdiction. If this inquiry fails, the jury can then proceed with a subjective inquiry to determine whether the defendant was an unwary innocent induced into committing a crime by the government. In addition to compensating for the underinclusiveness of the subjective approach, using an objective approach as a backstop allows courts to provide explicit guidance to police agencies concerning the appropriateness of their actions in undercover operations.