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Entrapment Defense

Were you induced by law enforcement to commit a crime? Entrapment is a possible defense, but is not easy to prove.

Colorado law provides entrapment as a possible defense to a criminal charge.

CO Rev. Stat. §18-1-709 (2016) states that:

The commission of acts which would otherwise constitute an offense is not criminal if the defendant engaged in the proscribed conduct because he was induced to do so by a law enforcement official or other person acting under his direction, seeking to obtain evidence for the purpose of prosecution, and the methods used to obtain that evidence were such as to create a substantial risk that the acts would be committed by a person who, but for such inducement, would not have conceived of or engaged in conduct of the sort induced. Merely affording a person an opportunity to commit an offense is not entrapment even though representations or inducements calculated to overcome the offender’s fear of detection are used.

This law means that law enforcement must 1) get you to commit the criminal act and 2) that you the normally law-abiding citizen would not have committed the crime but for the tactics employed by law enforcement to get you to do so.

A common example of this issue is when a person sells drugs to an undercover officer who asked to buy drugs from the person. Another example is a person that solicits sex for payment from an undercover officer posing as a prostitute.  

Entrapment is an affirmative defense. A person must show some evidence that they were not predisposed to commit the crime, but for law enforcement actions. 

Entrapment is determined by examining the individual and their behavior, for example: a person’s conduct in response to the government inducement; whether they showed reluctance to commit the offense, the amount of persuasion law enforcement had to use to overcome any reluctance, the ability of the person to commit the crime, whether the person has a prior criminal record for similar criminal acts. 

In the above examples of selling drugs to an undercover officer or soliciting an undercover officer, usually, the person is predisposed to commit the crime. It has to be more than just providing the opportunity to the person to commit the crime. For example, the drug dealer with a bag of drugs on them on the corner is looking for buyers, and being asked a couple of times by an unknown person for drugs will not be considered inducement or coercion. This is just creating an opportunity for the dealer to sell drugs. 

Entrapment is usually going to entail something over the top or overt by law enforcement. Repeated, persistent contact by the undercover officer overcoming a person’s initial and repeated refusal to engage in the criminal conduct, possibly emotional manipulation to make you feel bad for their situation so you give in finally because you feel like you’re helping even though you’re breaking the law.

Usually, the defense of entrapment is very fact-specific and left to a jury to decide whether a person was predisposed to the criminal acts. A skilled criminal defense lawyer can assist you through your case to determine if you have an entrapment defense. Knowing early on if you have a strong entrapment defense is key to successfully resolving your case.