SC JI Cr § 6-15 Entrapment
South Carolina Requests to Charge – Criminal (2018)
PART VI DEFENSES
§ 6-15 Entrapment
The defendant in this case has pled the defense of entrapment.
Entrapment is defined as the conception and planning of an offense by an officer or other person working with law enforcement agents under some sort of arrangement and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. Entrapment occurs where one is instigated, induced or lured by law enforcement, a law enforcement entity, or a person acting at the request or behest of law enforcement for the purpose of prosecution into the commission of a crime which he had otherwise no intention of committing.
The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime.
The entrapment defense consists of two elements:
(1) government inducement of the crime; and
(2) lack of predisposition on the part of the defendant to engage in the criminal conduct.
Predisposition, the principal element in the defense of entrapment, focuses upon whether the defendant was an unwary innocent or, instead, an unwary criminal who readily availed himself of the opportunity to perpetrate the crime. The defense of entrapment is not available to a defendant with a predisposition, independent of government inducement and influence, to commit the crime with which the defendant is presently charged.
The defense of entrapment has as its basis the fact that the law does not tolerate any person, particularly a law enforcement officer, generating in the mind of a person who is innocent of any criminal purpose the original intent to commit a crime, thus, entrapping such person into the commission of a crime which he would not have committed or even contemplated but for such inducement. Where a crime is committed as a consequence of such entrapment, no conviction may be had of the person so entrapped, as his acts do not constitute a crime.
If the intent to commit the crime did not originate with the defendant and he was not carrying out his criminal purpose, but the crime was suggested by law enforcement, a law enforcement entity, or a person acting at the request or behest of law enforcement acting with the purpose of entrapping and causing the arrest of the defendant, then the defendant is not criminally liable for the acts so committed. However, the fact that a government official merely affords opportunities or facilities for the commission of the offense does not constitute entrapment. Entrapment occurs only when the criminal conduct was the product of the creative activity of law-enforcement officials, that is, when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.
Where the doing of a particular act is a crime regardless of the consent of anyone, if the criminal intent originates in the mind of the defendant and the criminal offense is completed, the fact that an opportunity is furnished or that the defendant is aided in the commission of the crime in order to secure the evidence necessary to prosecute him therefor constitutes no defense. The purpose of the law enforcement officer is not to solicit the commission of the offense, but to ascertain if the defendant is engaged in an unlawful business. It is no defense that law enforcement, a law enforcement entity, or a person acting at the request or behest of law enforcement, acting as a decoy, furnished an opportunity for the commission of the offense. Such conduct is held not to procure the offense to be committed, the theory being that the offender acts of his own volition and is simply caught in his own devices.
In considering the defense of entrapment, you must ascertain whether the acts charged as constituting the offense were the result of the intent of law enforcement, a law enforcement entity or a person acting at the request or behest of law enforcement to place the defendant in a position where he might be charged with the offense and the defendant had no previous intention of committing such offense, in which event, the defendant may not be convicted. If you find the defendant was acting in pursuance of his own intent when he committed the act and law enforcement, a law enforcement entity, or a person acting at the request or behest of law enforcement was merely affording him the opportunity of doing so, in that event, the defense of entrapment would not relieve the defendant from criminal responsibility.
The defense of entrapment is an affirmative defense. This means the defendant must prove by the preponderance of the evidence that he was entrapped by actions of law enforcement, a law enforcement entity, or a person acting at the request or behest of law enforcement. The defendant has the burden of showing that he was induced, tricked or incited to commit a crime, which he would not otherwise have committed.