“You have to tell me if you’re a cop, right?” Phrases like that and others are frequently used in popular portrayals of law enforcement, especially when they are undercover. The reality, however, is quite different. Deceptive tactics are frequently used by police officers to arrest criminals. Unfortunately, sometimes innocent people fall prey to these tactics and are pressured into committing crimes they otherwise would have steered clear of. A police officer compelling someone to do a crime in this way is called “entrapment.”
In Utah, entrapment is a defense against being charged with a crime. That being said, it can be tricky to know when a police officer’s conduct rises to the level of entrapment, as pressuring someone to commit a crime is allowed up to a certain point. You will also need to prove during the trial that entrapment occurred. Additionally, some crimes do not allow defendants to raise entrapment as a defense.
For a free, confidential analysis of your situation by our Murray, UT criminal defense attorneys, call Overson & Bugden at (801) 758-2287.
What is Entrapment in Utah?
“Entrapment” refers to when law enforcement pressures someone into committing a crime. Specifically, under Utah Code § 76-2-303, entrapment occurs when a police officer “induces” someone to commit a crime they otherwise would not have carried out for the purpose of obtaining evidence for a criminal conviction.
In other words, a cop suspects that someone is a criminal, so they try to get them to commit a crime so they have evidence to give to a prosecutor.
Not all police coercion to carry out a criminal act is entrapment, though. The statute requires that the pressure to do a criminal act must create a “substantial” risk of the crime being committed by someone who wouldn’t otherwise commit it.
For example, suppose an undercover cop enters a college party where alcohol is being served to minors. The police officer then asks a 20-year-old partygoer if they “want a drink,” and they say yes and start chugging.
Here, although the police officer compelled the 20-year-old to commit the crime of drinking underage, level of “pressure” to commit a crime would likely not rise to the level necessary for an entrapment defense. That is because the pressure applied to make the crime happen was not very high and stemmed from the surroundings more than the police officer’s suggestion.
What is Considered Inducement for an Entrapment Defense?
Proving inducement is a key element of presenting a successful entrapment defense in Utah. Tell us everything you can remember about your interactions with law enforcement or someone acting on their behalf, and we can see if their conduct meets the criteria for inducement.
For us to prove the police induced you, we need to explain what law enforcement did to force or convince you to commit a crime you otherwise never would have. Police officers “induce” criminal conduct by threatening or coercing an individual, by engaging in continuous harassment, or by deceiving an individual into committing a criminal act.
Tell us if you or your family’s physical safety was threatened, or if you were otherwise coerced or forced into committing a crime. Give us as many details as you can remember, and inform us if you told anyone else about the harassment or pressure you experienced from law enforcement or someone acting on their behalf.
The more we know about your interactions with the police, the better. Give us any correspondence that shows inducement, like phone calls, texts, emails, or even social media messages.
How Do You Prove Lack of Predisposition for an Entrapment Defense?
The other key element of proving an entrapment defense is establishing what’s known as a “lack of predisposition.” We must show that the defendant would not have otherwise been predisposed to committing such criminal conduct, or any whatsoever, were it not for law enforcement’s actions. Even if we can prove you were induced, we cannot win with an entrapment defense unless we prove you were also not predisposed to commit the crime.
Your non-existent previous criminal record, witnesses who can attest to your character, and correspondence showing your ongoing reluctance to cooperate with a law enforcement officer or someone acting on their behalf regarding the commission of a crime can help us establish a lack of predisposition. Such evidence also helps us prove that you were threatened, coerced, or pressured into participating in a crime.
Strong evidence suggests that the defendant had no intent to commit the crime prior to law enforcement’s involvement, the defendant was against criminal activity, and that law enforcement put the will to commit the crime in the defendant.
Prosecutors might try to show a defendant was willing and able to commit a crime without law enforcement’s involvement, and our attorneys can use character witnesses and other evidence to undermine those arguments.
When Can Entrapment Occur in Utah?
Entrapment has to happen before a crime is committed. Undercover law enforcement officers are given a lot of latitude in how they can lie to and deceive people, as those tactics are deemed necessary for their job. So, an undercover cop might lie to you by denying that they are, in fact, a cop and then try to persuade you into admitting to a crime or committing one.
Once you are arrested, though, entrapment can no longer happen regarding that particular alleged crime. Many individuals incorrectly believe that a police officer cannot lie to you during interrogation or when you are being held in jail. Unfortunately, they legally can lie or tell half-truths during interrogations in order to get the information necessary for a criminal conviction.
The main limit is that they must read you your Miranda rights and stop asking questions if you request a lawyer. As such, none of this conduct in the interrogation room is the type of thing to lead to “entrapment,” even though it might constitute other types of unfair coercion.
You should still tell us if you were coerced after an arrest and during a custodial interrogation. A coerced confession may be inadmissible, compromising the already weak case against you.
When is Entrapment Not Available as a Defense in Utah?
Some specific crimes do not allow entrapment as a defense. Per § 76-2-303(2), entrapment is not available as a defense when the alleged crime involves causing or threatening to cause serious bodily injury. Also, suppose the defendant is being prosecuted for injuring someone, such as in a crime like murder, rape, or aggravated assault. In that case, they also cannot use entrapment as a defense in Utah.
Entrapment is also not available as a defense if you were going to commit the crime anyway, meaning there was no lack of predisposition.
For example, suppose an undercover cop asks if you want to buy drugs, and you immediately agree to purchase them and state that you are “looking for your fix.” That may not be entrapment because you were disposed to commit the crime before the officer brought it up; they were merely the means by which it was committed.
Defendants must also raise their entrapment defenses in a timely manner. You must raise this defense no later than ten days before trial, per § 76-2-303(4). However, you may be able to get an extension from the court under appropriate circumstances. Of course, our attorneys will ensure that all motions on your behalf are filed in a timely fashion.
Who Has the Burden to Prove Entrapment in Utah?
The prosecution’s burden is to prove guilt beyond a reasonable doubt. When presenting entrapment as a defense against charges in Utah, it’s our burden to meet all criteria for this defense.
It is the defense’s burden to prove police entrapment in a criminal case. This is an affirmative defense, meaning we essentially admit to the acts, then show why you lacked the legal culpability by providing evidence after we raise the defense. To prepare for this, our lawyers will spend time ensuring we have sufficient evidence to prove that police officers induced you to commit the crime you would not have otherwise, without their involvement.
The standard of proof the defendant has to prove their defense is much lower than the prosecution’s standard of proof to get a guilty conviction. While the prosecutor must prove guilt beyond a reasonable doubt, we must prove an entrapment defense by a “preponderance of the evidence,” meaning that it is more likely than not that law enforcement entrapped you.
Though the standard of proof for an entrapment defense may be lower than defendants expect, that doesn’t make it easy to meet. Depend on our lawyers to create your defense and build your case so you have the best chances of success.
If we satisfy our burden and prove your defense, the prosecution fails to meet their burden and cannot get a guilty verdict.
Effects of a Prior Criminal Record on Entrapment Claims in Utah
Individuals with a prior criminal history may be concerned that it will come up if they claim entrapment. However, under § 76-2-303(6), prior criminal convictions cannot be mentioned to try to counter an entrapment defense in Utah.
This is consistent with other general rules in criminal proceedings. You are on trial for this alleged crime, not any other crimes you may have committed in the past.
The only time that prior criminal history can be brought up is if it is if you take the stand and testify. For example, suppose the prosecution alleges that you bought illegal drugs from a cop, and you raise an entrapment defense. Then say that, on the stand, you state that you “never” do drugs and have never previously. The prosecutor can then bring up prior drug convictions to prove that you just lied on the stand under oath in court.
What Happens if You Prove Entrapment During Your Criminal Case?
When an entrapment defense is successful, the defendant is acquitted, and the prosecution cannot refile the same charges against them in the future.
Proving entrapment means you avoid a criminal conviction and facing any penalties. Utah’s Clean Slate Law guarantees automatic expungement 60 days after an acquittal, though you can get the ordeal removed from your record even sooner by filing an expungement petition with our lawyers’ help.
Discuss Your Claim with Our Utah Entrapment Defense Lawyers Today
Overson & Bugden’s Orem criminal defense lawyers are standing by to help you with your case when you contact us at (801) 758-2287.
