THE LAW

The following is the second in a series of articles by ONE's legal counsel on aspects of the law deemed by the Editors to be of interest and importance to ONE's readers. Other articles in this series will follow in subsequent issues.

A DISCUSSION OF ENTRAPMENT

"Police officers are empowered to capture criminals, not to create them."

These words, used in an early leading case on entrapment, have formed the basis of much subsequent legal discussion on the topic. The law of entrapment is one which is still not fully clear in the law; it has many contradictions; and it is particularly baffling to and subject to misunderstanding by laymen.

It is important to grasp first one fundamental concept: that "entrapment" is not a crime. With certain exceptions an officer who entraps a defendant into the commission of an offense he would not have otherwise committed is not guilty of a crime, at least under State law. He is merely overactive in procuring arrests. Perhaps, under such circumstances, he may be liable to the defendant in a civil action for money damages; but he has committed no crime.

What, then is the much-discussed "entrapment"? It is a defense, to be raised by an accused. One who has committed an offense is permitted to raise as a defense the fact that the idea of the offense did not originate in his mind, but that he was lured, persuaded, duped or seduced into acts he did not intend to commit by an overzealous police officer.

The defense of entrapment is an old one in the law. It existed in common law in England, centuries ago, and has

always been a part of American law. A famous series of "entrapment" cases in American histotry arose during the last century, when over-zealous liquorenforcement officers used the following device: they swore in as a deputy and one of their number a full-blooded Indian, but one who was indistinguishable from a white Caucasian. The Indian deputy would go into a bar, order a drink, and, having been served, arrest the bartender for having sold liquor to an Indian in violation of law. These convictions were versed

A statement of the general rule in modern law is: "Where police officers incited, induced, instigated or lured the accused into committig an offense which he otherwise would not have committed and had no intention of committing, entrapment exists and the defendant, though he has committed the offense will not be convicted."

On the other hand, this statement of law is always qualified with another: "It is not a defense that an officer has set a plan to capture a criminal, and to secure evidence of guilt against him, or has created circumstances in which the criminal can commit the offense."

Or, as it has sometimes been stated, the critical point is: In whose mind did the crime originate, the officer's or the defendant's? If in the mind of the latter, no entrapment exists.

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