An entrapment defense can form an important part of a successful criminal defense strategy in Utah. To understand entrapment, we can use fishing as an analogy.
A hook is not part of a fish’s normal diet. To get a fish to bite, you have to dress up the hook with bits of feather or hair or thread. Fool the fish and make it think the hook is really food, and you might reel in a big one.
Similarly, police might try to use bait or tricks or persuasion to get a person to commit a crime even though that person would not otherwise be inclined to or ready to engage in criminal activity. When police do this just so that they can prosecute the person for committing the crime that police tricked the person into committing, this is called entrapment.
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Utah Code 76-2-303 – An Affirmative Defense in Utah Criminal Cases
Utah Code 76-2-303 establishes the affirmative defense of entrapment, providing that a person should be found not guilty if the defendant was entrapped by police. Entrapment can be difficult to prove. But the entrapment defense in Utah provides an opportunity for potential dismissal of charges by a judge prior to trial and also an argument for acquittal by a jury at trial.
Elements of Entrapment in Utah Criminal Cases
Utah’s affirmative defense of entrapment involves conduct by police (or a person acting in cooperation with the police) that is intended to induced a person to commit a crime. When police do this for the purpose of creating an opportunity to prosecute the person for the crime induced by the police, the affirmative defense of entrapment applies.
Merely giving a person an opportunity to commit a crime is not enough to establish entrapment. A person who is otherwise ready to commit a crime and who is already inclined to do to so is not entrapped just because a police officer provides the opportunity. The conduct of the police must create a “substantial risk” that a crime would be committed by a person not otherwise ready to commit the crime.
Examples of Entrapment (and Not Entrapment)
Consider the following hypothetical example:
A plain clothes police officer spots an 18-year-old at a gathering where alcohol is being served. The officer approaches with a couple of beer bottles and asks, “Want a beer?” The 18-year-old jumps at the opportunity and starts to drink.
Possession or consumption of alcohol by a minor is the obvious charge that could be filed here. The entrapment defense does not apply because the police did not do anything more than just making an offer or providing an opportunity. Police did not engage in trickery or use any compelling methods of persuasion. The defendant seemed ready to drink the alcohol when offered.
Consider, however, a different scenario:
The officer’s offer of a beer is initially refused. The defendant responds by explaining that he does not drink because it is illegal at the age of 18. He further explains that drinking beer is not part of his physical conditioning program. The officer responds by pointing out that everyone else is drinking, and suggests that the defendant doesn’t want to look like a loser. The defendant begins to walk away, but the officer stands in front and blocks his path. The officer again tells the defendant he should try it at least once. The defendant finally agrees to just a sip. As soon as the defendant takes the beer bottle, the officer identifies himself as a police officer and makes an arrest.
In this version of events, the defendant initially refuses the officer’s offer. He gives multiple reasons for refusing to take a drink. He even tries to leave. Only after the officer repeatedly tries to get him to drink does he eventually give in. A judge or jury could reasonably believe that the defendant was not otherwise ready to commit the crime. Were it not for the police officer’s persistent efforts to persuade him, he likely would not have had a drink.Under such a scenario, the affirmative defense of entrapment has a good chance of success.
Presenting an Entrapment Defense in Utah
Utah law gives a defendant two opportunities to present an entrapment defense in a criminal case. Utah Code 76-2-303 allows a defendant to first raise the defense by filing a written motion with the court. If the motion is successful, the case is dismissed. If not, a defendant can present the entrapment defense again to a jury.
To present an entrapment defense by written motion, the motion normally must be filed at least 10 days prior to a scheduled trial. The court is required to hold an evidentiary hearing (similar to a trial) where the prosecution and defense both have an opportunity to call witness and cross examine the other side’s witnesses. If the court is persuaded as a matter of law that the elements of entrapment have been met, the judge is required to dismiss the case with prejudice.
If the written entrapment motion is denied by the court, the defendant still has a right to present that defense to a jury. At trial, a defendant is permitted to present alternative defenses. For example, a defendant could argue that he did not have the required state of mind (mens rea) or, in the alternative, that the police entrapped him.
Finding the Right Criminal Defense Attorney
The right criminal defense team can make an enormous difference. Criminal charges in Utah can have serious and long-lasting consequences. Contact us today to see how we can help you.