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Utah Code 76-2-303 - Entrapment as Affirmative Defense

Under Utah Code 76-2-303, a person may be found not guilty of a crime if the defendant was “entrapped into committing the offense.” Entrapment is considered to be an affirmative defense. If the elements of an entrapment defense are met, it can be a complete defense to a criminal charge and can result in a not guilty verdict at trial.

Elements of Entrapment under Utah Law

Utah’s entrapment law requires evidence that a police officer (or a person who was acting in cooperation with or under the direction of the officer) induced the defendant to commit the crime, for the purpose of obtaining evidence to prosecute the defendant for that crime.

The methods used by the officer must be so compelling that they create a substantial risk the offense would be committed, and that the defendant would not otherwise be ready to commit the crime. If the officer’s conduct merely provides the defendant with the opportunity to commit a crime, then the elements of entrapment are not established.

Consider the following hypothetical example:

An undercover police officer sees an 18-year-old person at a party where alcohol is being served. The officer simply asks, "Do you want a beer?" The 18-year-old subject (who has a history of frequent underage drinking) readily accepts the offer.

The defendant in this example could be charged with possession of alcohol by a minor. The officer has not used overly-compelling methods of inducement. Further, the defendant in this example appears to have been otherwise ready to commit the crime. An entrapment defense would likely not be successful.

Consider, however, the following alternate scenario:

The undercover police officer's invitation to have a beer is initially declined. The defendant explains politely that he has quit drinking because it is illegal at the age of 18, and he is trying to turn his life around. The officer points out that "everyone else is doing it" and that the defendant will "look like a loser" if he doesn't have a drink. The defendant still declines the offer, and tries to walk away. The officer moves in front of the defendant, and now challenges his masculinity, stating that if the defendant were a "real man" that he would not be afraid to have a drink. When the defendant still refuses, the officer then encourages the other party-goers to start chanting "chicken, chicken" until the defendant finally agrees and takes a small sip of beer.

In this alternate scenario, a judge or jury could find that the police officer's conduct created "a substantial risk that the offense would be committed by one not otherwise ready to commit it." The officer's conduct goes far beyond "merely affording a person an opportunity to commit an offense." (Note also that in the above scenario, the police officer could also be charged with a crime for providing alcohol to a minor.)

Exceptions to Entrapment Rules - Violence

Entrapment cannot be used as a defense to charges that include a causing or threatening bodily injury to another as an element of the crime charged. While it is theoretically possible that a police officer might try to entrap a defendant to commit a violent crime, the Utah legislature appears to have made a public policy decision to disallow such a defense.

Alternate Defenses

Under Utah law, an entrapment defense is technically available even if the defendant denies committing the crime that has been charged. In other words, a defendant can present two alternate defenses: 1) the first defense is that the defendant did not commit the crime; 2) the second alternate defense is that, if the jury finds that the defendant did commit the crime, it was committed only because the police engaged in entrapment.

Raising alternate defenses like this in a criminal case is difficult and risky. In essence, a defendant must argue both that he did commit the criminal act (under entrapment) and that he did not commit the criminal act. While such arguments are legally valid, a jury may be inclined to view this as legalistic double talk and find the defendant guilty. Careful consultation with an experienced criminal defense attorney is strongly advised before attempting to utilize this defense strategy.

Procedural Issues in Presenting an Entrapment Defense in Utah

Under Utah Code 76-2-303, a defendant is entitled to raise the defense of entrapment twice: once to the judge, and a second time to a jury.

If the defendant makes a formal written motion, at least ten days before trial (absent a showing of good cause for a later filing), the judge is required to hold a hearing and take evidence on the question of whether the defendant was entrapped to commit the offense. If the court finds that as a matter of fact and a matter of law the defendant was entrapped, then the court is required to dismiss the case with prejudice (meaning that it cannot be re-filed). While this finding by the court results in an order dismissing the case with prejudice, this is an order that can be appealed by the prosecutor. If, after appellate review is complete, the order is reversed, the defendant may still be required to stand trial on the original charges.

If a judge determines that the defendant was not in fact entrapped, or if the dismissal is reversed on appeal, the defendant is still entitled to raise the issue of entrapment at trial. At trial, the issue of entrapment is treated as an affirmative defense. If evidence is presented either by the defense or by the prosecutor that tends to show entrapment, then the jury must find beyond a reasonable doubt that the defendant was not entrapped.

Relevance of a Defendant's Prior Criminal Record in an Entrapment Defense

In raising a defense of entrapment, one relevant issue is whether the defendant was already inclined to commit the crime. Evidence of a defendant's prior criminal convictions is generally not admissible, except where the defendant testifies at trial. When a defendant testifies, Utah's entrapment law allows a prosecutor to ask about prior felony convictions that the defendant may have. The defendant can also be questioned for impeachment purposes about prior testimony given by the defendant at an entrapment hearing before a judge.

Finding a Utah Criminal Defense Attorney in Salt Lake City

Salt Lake Defense AttorneyThe assistance of a good criminal defense attorney can be vital to a successful defense strategy in any case. But if you are contemplating raising a defense of entrapment, it is especially important to have to have an experienced lawyer on your side.

Utah criminal defense attorney Stephen Howard has successfully protected his clients rights in a wide variety of felony and misdemeanor criminal cases, ranging from violent felonies to white collar crime, from homicide to DUI, and virtually everything in between. Based in Salt Lake City, Mr. Howard offers legal services to clients throughout Utah.

Contact us today to arrange for an initial confidential consultation.

Utah Code 76-2-302 - Compulsion as an Affirmative Defense
Utah Code 76-2-202 - Accomplice Liability

More Utah Criminal Code Provisions

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Attorney Stephen Howard practices as part of the Canyons Law Group, LLC and Stephen W. Howard, PC.

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