The Police Made Me Do It: Will the Entrapment Defense Work for Me?

small picture of attorney bill henry
By: Bill Henry
PublishedAug 6, 2021
6 minute read

The entrapment defense can be a viable one for some criminal cases. In this article, you will learn how Colorado law defines entrapment and what it takes to successfully use it in a criminal case.

Do You Think You Were Entrapped?

Our Criminal Defense Team is experienced in helping defendants who face a variety of criminal charges. Call 303-688-0944 to schedule a case assessment to discuss possible defenses for your charges.

The Sting Operation

Law enforcement agencies use sting operations to provoke illegal behavior from someone. These undercover assignments are used for all sorts of crimes from drug raids to child prostitution busts.

entrapment defense

For instance, law enforcement agencies know online forums harbor individuals looking to exploit adolescents and teenagers. So, police hold internet sting operations to expose people eager to commit crimes against children.

Sting operations are very sophisticated police campaigns, and how they are carried out depends on what crime they are focused on.

The Office of Community Oriented Policing Services within the U.S. Department of Justice indicates sting operations generally include these four elements:
  1. “an opportunity or enticement to commit a crime, either created or exploited by police
  2. a targeted likely offender or group of offenders for a particular crime type
  3. an undercover or hidden police officer or surrogate, or some form of deception
  4. a “gotcha” climax when the operation ends with arrests”
    Problem-Oriented Guides for Police Response Guides Series, Guide No. 6, p3

Colorado law does not prohibit police from lying to citizens or providing them an opportunity to break the law. However, if the agency’s efforts to entice someone to commit a crime go too far, your defense attorney may be able to prove you were entrapped.

Colorado Law & Entrapment

Unlike your Fifth Amendment right to not incriminate yourself, you do not have a constitutional right to an entrapment defense. Since the entrapment defense is not covered by the U.S. Constitution, states are left to define it.

In Colorado, entrapment occurs when a law enforcement officer persuades an otherwise law-abiding citizen to commit a crime.

Here’s how Colorado law reads:

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. C.R.S. § 18-1-709

Opportunity is Not Entrapment

Now, merely giving someone an opportunity to commit a crime is not entrapment, hence legal sting operations. There is the expectation, after all, that a law-abiding citizen will reject the temptation to commit an unlawful act.

You may have been entrapped if you would not
have committed the crime if not for the police.

The entrapment defense is comprised of these elements:
  1. You would not have conceived of or engaged in the crime if not for the police’s inducement.
  2. Police sought to obtain evidence to prosecute someone of a particular crime, and you engaged in the crime because they induced you – not because of your own disposition.
  3. The methods police used to get the evidence were such that they created a substantial risk that you would engage in the illegal act.
  4. The police’s methods were more persuasive than simply giving you a chance to commit the crime.

Developing an Entrapment Defense

Many people charged in sting operations tell their attorney that the police tricked them into committing the crime. Perhaps the police duped the client. But as you may already realize, the entrapment defense is more complex than believing the cops set you up.

You must meet a number of factors to have a viable entrapment defense. Let’s explore some of those.

Credible Evidence

In Colorado, all you need is “some credible evidence” to raise the issue of entrapment in your case. C.R.S.A. § 18-1-407

Admission of Guilt

It’s important to understand that entrapment is an affirmative defense. Affirmative meaning that, yes, you committed the crime, but you can justify why you did it. In this instance, the justification would be entrapment.

Denial Disqualifies the Defense

If you insist you are innocent, a Colorado court will not accept your entrapment defense.

Take the 2001 Colorado Court of Appeals case People v. Hendrickson. The defendant, Hendrickson, was convicted of solicitation to commit murder. On appeal, she argued the trial court judge should have allowed her to use the entrapment defense. The trial court judge denied her use of the affirmative defense because Hendrickson, in fact, had denied a crime was committed – she even had witnesses testify she did not commit the crime.

Citing numerous court cases, the Colorado Appeals Court held that “a defendant must admit having engaged in the proscribed conduct to be entitled to an entrapment” defense.

The appeals court concluded that Hendrickson was not entitled to use entrapment due to her “denial of wrongdoing.”

Inconsistencies Throw Out an Entrapment Defense

In Colorado, defendants must admit to all elements of the crime, otherwise, the court will not allow them to use an entrapment defense.

In law, there is something called the inconsistent defense. Generally, a defendant can use inconsistent defenses as long as they are not so contradictory that proof of one necessarily disproves the other. 71 C.J.S. Pleading § 176

Colorado does not allow inconsistent defenses when the defendant raises the issue of entrapment.

The Inconsistent Defense Controversy 

The question about the inconsistent defense and entrapment has divided courts around the country for decades.

Back in the 1980s, the U.S. Supreme Court held that defendants are entitled to an entrapment defense when there is sufficient evidence even if the defendant denies some elements of the crime. Mathews v. United States

Many courts choose to follow the U.S. Supreme Court’s lead in entrapment cases. Colorado courts do not.

Take People v. Grizzle, another Colorado court case in which the defendant was not allowed to use the entrapment defense because he did not admit to all aspects of the crime.

The defendant was found guilty of attempted sexual assault on a child and enticement of a child following an internet sting in which a deputy sheriff posed as a 13-year-old girl.

In 2006, the Colorado Court of Appeals agreed that the defendant could not use the entrapment defense because the “defendant did not admit that he believed the ‘victim’ to be under the age of fifteen years.” 

While some Colorado judges have suggested this issue be reviewed, the Colorado Supreme Court has not directly addressed the inconsistent defense related to entrapment.

Proving You Were Entrapped

When a defendant raises an entrapment defense, the prosecutor must prove beyond a reasonable doubt police did not entrap you.

The Colorado Supreme Court held that “once a defendant has presented some credible evidence on the issue [of entrapment by police], the prosecution must prove beyond a reasonable doubt that the defendant was not entrapped.” People v. Sprouse, supra, 983 P.2d at 775

Your entrapment defense will, essentially, revolve around your character and state of mind. More specifically, a jury will have to decide whether:
  1. you were predisposed to committing the crime before you were approached by the undercover officer, and
  2. whether the undercover officer’s inducement created enough substantial risk to cause you, a law-abiding citizen, to commit the crime.

Proving Predisposition, or Lack Thereof

If you’re a defendant in a criminal case using an entrapment defense, you must show that you were not predisposed to committing whatever crime you’re charged with.

So, what does predisposed mean? By definition, it simply means that someone already has a tendency to do something.

Here’s a simple example:

Lance buys drugs from an undercover officer. Police subsequently arrest him. If Lance has purchased illegal drugs in the past, well, it’s probably fair to say Lance was predisposed to buying illegal drugs before the undercover cop ever approached him. In this case, Lance cannot argue entrapment due to his predisposition.

Colorado law does not outline the factors that determine predisposition. However, you can expect the prosecution to delve into your background, character, and how you behaved during the sting operation to prove your predisposition.
  • Have you committed the same crime in the past?
  • Were you eager to commit the crime presented to you by the undercover agent?
  • How reluctant were you to commit the crime?
  • If reluctant, how much convincing did it take to get you to commit the crime?

People v. Sprouse clarified that prosecutors can use the evidence collected during a sting operation to show predisposition as long as the evidence relates to the defendant’s state of mind before meeting with the undercover cop.

But What About the Cop’s Role?

While your character and behavior are central to an entrapment defense, law enforcement’s conduct is not disregarded.

In fact, the Colorado Supreme Court noted in People v. Sprouse that, “the stronger the inducement, the more likely that any resulting criminal conduct by the defendant occurred as the result of the inducement rather than of the defendant’s own predisposition.” 

Your defense attorney will present the tactics law enforcement used to get you to commit a crime. For instance, law enforcement heavily pursued you for months on end. The agent blackmailed you. If your charge resulted from an internet sting, your attorney will examine the language the undercover officer used during the chats.

Find Out if the Entrapment Defense Could Work for You

While this article is relatively in-depth, it is meant for educational purposes only. You should talk to an attorney about the facts of your case to determine which defenses are available to you.

Our Criminal Defense Team is experienced in representing clients facing a wide range of criminal charges. You have a right to legal representation, get yours today. Call 303-688-0944 for your case assessment or click here to schedule it online.

More Than Just Lawyers. Lawyers for Your Life.

Learn more about our law firm’s philosophy and values.