Crim Pro: Inv.—2d Half (after midterm)
Professor Carter
v ENTRAPMENT:
o Deals w/ manipulative agents that sometimes start a crime, they sway those who are predisposed to commit a crime, and even those who are not predisposed. The agent manufactures and creates the crime through its seductive means. This society believes that people are dangerous in the future and we even incarcerate people based on it (sexual predators). Seen as a preventative, catch the criminal before they commit the crime.
o Law on entrapment is a judicial creation (few statutes on it). There could be a due process violation for extreme acts. 2 types of tests:
§ (1) Subjective– focuses on if person is predisposed to commit the criminal transaction.
· Can be based on hearsay, rumor, reputation, prior criminal record, vices, willingness, past behavior, special knowledge, or criminal connections.
· Adjudicated at trial and jury decides if the person was predisposed or if they were entrapped b/c gov’t actions went too far.
§ (2) Objective—(minority view) judge decides in pretrial hearing, focus is if gov’t went too far to induce suspect to commit the crime. What gov’t did is outrageous.
· Looks at excessive inducement, repeatedly persistence, intimidation/threats, excessive offering of huge discounts, playing upon needs, sex.
· Views the conduct on if the activity would induce a hypothetical person not ready and willing to commit the crime to engage in criminal activity.
§ (3) Hybrid test– judge decides no entrapment, but defense can still argue to jury under the subjective test
o Subjective and Objective tests consider the same issues but the focus is different. What counts for entrapment under either test:
§ Gov’t agent
§ Consistent persistence by police
§ Police efforts to overcome
§ Nature of inducements
§ Unwillingness of suspect
§ Some kind of commission to the officer given for the prosecution
§ Trying to get evidence for the State
o Hoffa v. US: NO PRIVACY RIGHT WHEN CONFIDENTIAL INFORMANT (CI) BECOMES HUMAN BUG
§ FACTS: The undercover CI was invited by Hoffa into his hotel room to talk about bribing the jury in Hoffa’s case. The CI told the State the substance of the conversations
§ DECISION: The CI did not violate any right to privacy even though he didn’t disclose himself as a gov’t informant. Hoffa did not rely upon the privacy of the hotel room to be free from gov’tal intrusion. He invited in the CI.
§ PROSECUTION:
· Probable cause for the search warrant, could just arrest
· No warrant needed b/c there was no privacy expectation
· Consent, false friend, assumption of the risk
· Participant monitoring: could have told or recorded the conversation on his own
§ DEFENSE:
· Character of the person being used isn’t the best
· Could have gotten a continuous search warrant
· Chilling effect on speech
· Police facilitated wiretapping v. the person just being there: there is a difference
· Could have altered the tape
· No significant threat to police as drug dealers would be: that would warrant monitoring for safety
o US v. White: reaffirmed Hoffa in the context of wearing a wire
§ Simultaneous recording enhances the reliability of the evidence
§ Consent
§ Participant monitoring
§ Protect informant from any harm
§ Seems to say assumption of risk extends to the 3rd party listening
o US. v. Longoria: no expectation of privacy when you speak in another language. Probability that someone will understand that language is assuming the risk of speaking it. BUT, the other language destroys the protection of the CI argument, as those on the other end may not speak the language normally and may need an interpreter to translate.
o Sorels v. United States: Federal undercover agent posed as tourist and old WWI vet. They became buddies and undercover guy asked Sorrell for some liquor and this was illegal b/c of Prohibition. Sorrells refused, but upon 3rd request, he did so and was prosecuted for violating the act.
§ DECISION: Ct overturned conviction. Entrapment was considered statutory, Congress did not intend law enforcement create a crime. Ct applied subjective test, look at predisposition, cannot argue acquittal if you were predisposed to commit the crime.
o Sherman v. United States: D sold narcotics to gov’t agent. Agent got confidence of D (met at a doctor’s office, where both being treated for being narcotics addicts). After befriending the D, agent sought drugs and D gave in.
§ DECISION: Ct overturned conviction. n deciding entrapment, must draw line at unwary innocent. Looked at if improper use of gov’tal power.
§ Applied the subjective test. Ct held that at the time he was no in drug trade, trying to do something affirmative trying to stay away drug trade, so change was look to predisposition, look at the time (he did have prior drug convictions)– ct didn’t like gov’t praying on his weakness.
o United States v. Russell: OK TO GIVE SUSPECT NECESSARY INGREDIENT TO MA
ine said the age of boys. No reasonable suspicion requirement. \Police can offer for him to commit a crime.
§ DEFENSE:
· He was only responding.
· They were working on his 1stA rights, enticing him w/ constitutional fight– talking about lobby groups and stuff, just shows supportive of the cause
· Pressured by constant mailings
· Unwary innocentà farmer, reluctant, taking care of dad
· Gov’t only had an inclination, not a predisposition– everyone has a curiosity for things but if pressured to do it, would. Predisposition is more than a thought it is an actus reus, need overt action.
o Predisposition = actus reus toward objective
o Inclination = only thoughts, not acting on it
· This is active action by the gov’t, instead of passive action. Look at amount of initiation and activity by gov’t. He didn’t actively search out himself, the gov’t brought it to him. Objective test
· This went on for many years, too long– if it took him 3 years to buy it, is he really predisposed?
· No illegal predisposition independent from gov’t action- always responsive to gov’t action.
· Not like Russell where he was already engaged in the illegal activity
§ PROSECUTION:
· Predisposition
o He said he had an interest and checked box to send more and checked box that interested in young men. There is the actus reus.
· Should be able to draw stronger inferences based on predisposition. Subjective test.
· Gov’t actions were passive- you get this stuff all of the time- he responded in hopes of getting more.
o General Notes
§ Inconsistent defenses– can you deny the crime but also have defense of entrapment? Cts typically allow defense of entrapment, and can run inconsistent defenses, but doesn’t look good to a jury.
§ Burden of proof:
· W/ subjective approach, D must establish inducement by gov’t agent and then burden switches to the gov’t to establish the D’s predisposition beyond a reasonable doubt.
