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Excuses

Excuses

The defenses of excuse are based on the idea that the law should make allowances for the imperfections and frailties of human nature.
Practically speaking, excuses are no more popular in criminal law than they are in daily life.
This hostility can be seen in the failure of almost every defendant who tried to escape criminal liability by pleading an excuse.
Legally speaking, the defenses of excuse (with the major exception of insanity) provide the defendant with the same opportunity as justifications.
Defendants who successfully plead these defenses "walk"—but they walk under a different theory.

Theory of Excuse Defenses

Defendants who plead justification accept responsibility for their actions but claim that what they did was right.

Those who plead excuse admit what they did was wrong by deny that they were responsible.

Insanity

CNN made Lorena Bobbitt a household name.
Many may remember that she was free on an insanity plea a mere five weeks after a jury convicted her of cutting of her husband’s penis.
The Bobbitt case is a very rare kind—most defendants that successfully plead insanity remain committed to mental health facilities for a long time.

Clearing Up the Myths

The insanity defense gets a lot of public attention, but the public in general misunderstands how the defense works.
Contrary to popular belief, few defendants plead the insanity defense.
The few who do plead insanity (mostly murders sentenced to life or death) do not succeed.
The few who succeed do not go free—courts have to decide if defendants who were insane when they committed their crimes are still insane.

Results of Successful Plea

If the defendant is still insane, they are locked up in maximum security prisons called hospitals.

Many times, they are locked up for the rest of their lives.

Logic of the Insanity Defense

The insanity defense stands for the idea that we can only blame those criminals who are responsible for their actions.
Insanity excuses criminal liability only when it impairs mens rea and/or actus reus.
If the defendants were so mentally diseased that they couldn’t form a criminal intent and/or control their actions, then we can’t blame them for what they did and punishment is out of order.

Civil Commitment

This of course doesn’t meant that insane people get to go free—the government can invoke its power to lock up dangerous people by means of noncriminal proceedings known as civil commitment.

What is Insanity?

Keep in mind that insanity is a legal concept, not a medical term.
What psychiatry calls mental illness may or may not be legal insanity.
Mental disease is insanity only when the disease affects reason and will.
Psychiatrists testify in courts to help juries decide whether defendants are legally insane, not to prove defendants are mentally ill.

Guilty But Mentally Ill

The verdict "guilty but mentally ill" makes clear the distinction between mental illness and legal insanity.

This verdict, used in some states, allows for criminals to be convicted of their crimes, but receive treatment for their mental illness in prison.

Two Major Insanity Tests

There are two major tests used by courts to determine if a defendant is legally insane:

The right-wrong test
The substantial capacity test

Both tests look at the defendant’s mental capacity, but they differ in what they are looking for.

The right-wrong test focuses on reason, namely the capacity to tell right from wrong.
The substantial capacity test focuses not only on reason but also on will, namely on defendants’ power to control their actions—volition or will power.

Right-Wrong Test

The M'Naghten rule, or right-wrong test, focuses on reason, namely the capacity to distinguish right from wrong.
Psychologists call this cognition.
The test is based on a famous English case decided in 1843.
Daniel M’Naghten suffered the paranoid delusion that the prime minister, Sir Robert Peel, had masterminded a conspiracy to kill him.
M’Naghten shot at Peel in delusional self-defense but killed Peel’s secretary, Edward Drummond, by mistake.
Following his trial, the jury returned a verdict of not guilty by reason of insanity.
On appeal, the House of Lords created a two-pronged right-wrong test, or M’Naghten Rule of insanity.

Two Elements

The defendant had a mental disease or defect at the time of the crime, and
The disease or defect caused the defendant to not know either

The nature and the quality of his or her actions, or

That what he was doing is wrong.

Defining Mental Disease

"Mental Disease" means psychosis, like the paranoia from which M’Naghten himself suffered, and schizophrenia.

It doesn’t include personality disorders like psychopathic and sociopathic personalities that lead to criminal or antisocial conduct.

Defining Mental Defect

Mental "defect" refers to retardation severe enough to make it impossible to know what you’re doing, or to know that it is wrong.

Nature and Quality of the Act

This phrase simply means that you don’t know what you’re doing.

"If a man believes he’s squeezing lemons when in fact he’s strangling his wife, he doesn’t known the nature and quality of his act."

The Meaning of Wrong

Some states require that defendants didn’t know their conduct was legally wrong; others say it is morally wrong.
Consider someone who kills another person under the insane delusion that her being convicted of murder would save the human race.
She knew that killing was a crime, but believed it to be morally right.
If "wrong" means "legal" she’s guilty; if it means "moral", she’s insane.

The Durham Rule

Due to the influence of Freudian psychology, some people began to reject the right-wrong test in favor of a test that was sensitive to things going on in the unconscious mind.
In Durham v. United States, the court developed the product test of insanity.
This test held simply that actions that were the product of mental disease or defect were excusable.

The fate of the Durham Rule

Today only New Hampshire uses the Durham rule.

Criticisms of the Right-Wrong Test

Defenders of the right-wrong test say that the product test misses the point of insanity.
They maintain that the right-wrong test shouldn’t substitute mental illness for insanity.
Rather, mental illness is only an instrument to determine which mental states ought to relieve persons of criminal responsibility.
Another line of criticism focuses on the purely intellectual basis of the test.
According to this line of criticism, the right-wrong test, by focusing in reason, neglects two important dimensions of criminal responsibility.
One is that knowing something is wrong is not enough; you have to appreciate that it’s wrong.
Example: A five year old probably knows in her head that its wrong to steal from her mother’s purse, but she doesn’t appreciate the criminality of the act.
Second, looking only at reason overlooks will.
Just because you know something is wrong, even if you fully appreciate its wrongfulness, doesn’t mean that you can stop yourself from doing it.
According to this criticism, we can neither blame nor deter people who because of mental disease or defect cant conform their conduct to what the law requires.
The law of civil commitment can protect society from them and treat them without resorting to criminal sanctions.

Irresistible Impulse Test

Several jurisdictions have responded to the criticism that the insanity defense should look at will as well as reason by supplementing the right-wrong test with what we call the irresistible impulse test.

According to this test, even if the defendant knows what they’re doing and that it is wrong, they are entitled to a verdict of not guilty by reason of insanity if they have a mental disease or defect that at the time of the crime kept them from controlling their conduct.

Criticisms of the Irresistible Impulse Test

Some critics say that the irresistible impulse supplement doesn’t go far enough.
First, they claim that it includes only sudden impulses although it should also include conduct characterized by "brooding and reflection."
Second, they claim that the irresistible requirement implies that defendants have to lack control totally.
In practice, however, juries do acquit defendants who have some control; rarely do juries demand an utter lack of control.

The Other Side

Other critics say that the irresistible impulse test goes too far.
By allowing people who lack self-control to escape punishment, the test cripples both retribution and deterrence.
They point to the high-profile case of John Hinckley, Jr., acquitted because the jury found him insane when he tried to assassinate Reagan to get Jodie Foster’s attention.
Since the attempted murder of President Reagan, several jurisdictions, including the federal government, have abolished irresistible impulse as a defense.

Substantial Capacity Test

The substantial capacity test is supposed to remove the objections to the right-wrong test and the irresistible impulse supplement to it.
This test emphasizes both qualities in insanity that affect culpability: reason and will.
As the name suggests, defendants have to lack a substantial, not total, mental capacity.

Model Penal Code Definition

Substantial Capacity – A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks the substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of the law.

What’s the Difference?

The use of "appreciate" instead of "know" makes clear that mere intellectual awareness is not enough to create culpability.
The phrase "conform his conduct" removes the requirement of a "sudden" lack of control.
In other words, the code provision eliminates the suggestion that losing control means losing it on the spur of the moment, as the irresistible impulse test implies.

Burden of Proof

The defense of insanity not only poses definition problems but also gives rise to difficulties in application.
States vary as to who has to prove insanity, and how convincingly they have to do so.
The Hinckley trial made these questions the subject of heated debate and considerable legislative reform in the 1980s.
For example, the federal government changed the burden of proving sanity from beyond a reasonable doubt to a standard of "clear and convincing evidence."

Arkansas Insanity Defense

§ 5-2-301. Definitions

(5) (A) "Mental disease or defect" refers to a substantial disorder of thought, mood, perception, orientation, or memory that grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life, or having a state of significantly subaverage general intellectual functioning existing concurrently with defects of adaptive behavior which developed during the developmental period, or a significant impairment in cognitive functioning acquired as a direct consequence of a brain injury.

(B) As used in this code, the term "mental disease or defect" does not include an abnormality manifested only by:

         (i) Repeated criminal or otherwise antisocial conduct;

         (ii) Continuous or noncontinuous periods of intoxication, as defined in § 5-2-207(b)(1), caused by substances such as alcohol or drugs; or

         (iii) Dependence upon or addiction to any substance such as alcohol or drugs;

§ 5-2-304. Notice requirement

(a) Whenever a defendant intends to raise mental disease or defect as a defense in a prosecution or put in issue his fitness to proceed, he must notify the prosecutor and the court at the earliest practicable time.

(b) Failure to notify the prosecutor within a reasonable time before the trial date shall entitle the prosecutor to a continuance which, for limitation purposes, shall be deemed an excluded period granted on application of the defendant. Alternatively, in lieu of suspending all further proceedings under § 5-2-305, the court may order the immediate examination of the defendant at a designated receiving facility or program by a qualified psychiatrist or a qualified psychologist.

§ 5-2-312. Lack of capacity -- Affirmative defense

(a) (1) It is an affirmative defense to a prosecution that at the time the defendant engaged in the conduct charged, he or she lacked capacity, as a result of mental disease or defect, to conform his or her conduct to the requirements of law or to appreciate the criminality of his or her conduct.

(2) When the affirmative defense of mental disease or defect is presented to a jury, the jury, prior to deliberations, shall be instructed regarding the disposition, pursuant to § 5-2-314, of a defendant acquitted on the grounds of mental disease or defect.

(b) As used in this code, the terms "mental disease or defect" do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

(c) When a defendant is acquitted on grounds of mental disease or defect, the verdict and judgment shall so state.

§ 5-2-314. Acquittal -- Examination of defendant -- Hearing

(a) When a defendant is acquitted on the ground of mental disease or defect, a circuit court shall be required to determine and to include the determination in the order of acquittal one (1) of the following:

(1) The offense involved bodily injury to another person or serious damage to the property of another or involved a substantial risk of such injury or damage, and that the defendant remains affected by mental disease or defect; or

(2) The offense involved bodily injury to another person or serious damage to the property of another or involved a substantial risk of such injury or damage, and that the defendant is no longer affected by mental disease or defect; or

(3) The offense did not involve bodily injury to another person or serious damage to the property of another nor did it involve substantial risk of such injury or damage, and that the defendant remains affected by mental disease or defect; or

(4) The offense did not involve bodily injury to another person or serious damage to the property of another nor did it involve a substantial risk of such injury or damage, and that the defendant is no longer affected by mental disease or defect.

b) If the court enters a determination based on subdivision (a)(1) or (3) of this section, the circuit court shall order the defendant committed to the custody of the Director of the Department of Human Services for an examination by a psychiatrist or a licensed psychologist.

(c) If the court enters a determination based on subdivision (a)(2) or (4) of this section, the court shall immediately discharge the defendant.

(d) The director shall file the psychiatric or psychological report with the probate clerk of the circuit court having venue within thirty (30) days following entry of order of acquittal. A hearing shall be conducted by the court and shall take place not later than ten (10) days following the filing of the report with the court.

(e) A person found not guilty on the ground of mental disease or defect of an offense involving bodily injury to another person, or serious damage to the property of another, or involving a substantial risk of such injury or damage has the burden of proving by clear and convincing evidence that his or her release would not create a substantial risk of bodily injury to another person or serious damage to property of another due to a present mental disease or defect. With respect to any other offense, the person has the burden of proof by a preponderance of the evidence.

f) The acquittee whose mental condition is the subject of a hearing has a right to counsel. If it appears to the court that the acquittee is in need of counsel, counsel shall be appointed immediately upon filing of the original petition. Whenever legal counsel is appointed by the court, the court shall determine the amount of the fee to be paid the attorney so appointed and issue an order of payment. The amount allowed shall be based upon the time and effort of the attorney in the investigation, preparation, and representation of the client at the court hearings.

Bell v. State, 120 Ark. 530, 180 S.W. 186 (1915)

The law presumes that every man is sane and that he intends the natural consequences of his acts; and where one was charged with murder in the first degree and it was admitted that if sane he was guilty as charged and the plea of insanity was interposed in his defense, the burden was on the accused to establish his insanity by a preponderance of the evidence.

Intoxication

Intoxication as a defense is torn between two principles:

Accountability: Those who get drunk should take the consequences of their actions. Someone who gets drunk is liable for the violent consequences.

Culpability: Criminal liability and punishment depend on blameworthiness.

The Common Law Approach

"As to artificial, voluntarily contracted madness, by drunkenness or intoxication, which, depriving men of their reason, puts them in a temporary frenzy; our law looks upon this as an aggravation of the offense, rather than an excuse for any criminal misbehavior."

The Bottom Line

Voluntary Intoxication is not a valid defense in most jurisdictions.

Involuntary Intoxication

Involuntary Intoxication is an excuse to criminal liability in all states.
Involuntary Intoxication includes cases in which defendants don’t know they are taking intoxicants, or know but are forced to take them.
Involuntary intoxication applies only in the most extreme conditions when duress is the issue—mere verbal abuse will not be enough.
Alcohol is the most common substance involved in intoxication defenses, but not the only one.
Most jurisdictions allow for any "substance" that disrupt mental and physical capacities.
Actions performed while under involuntary intoxication form cocaine and LSD have not been subjected to criminal liability.

Age

Ever since the days of the English common law, immaturity has excused criminal liability.
A rigid but sensible scheme for administering the defense was developed during the 16^th century.
The common law divided people into 3 age groups: under 7 years, 7 to 14 years, and over 14 years.
Children under seven could not form criminal intent—there was an irrebuttable presumption that they lacked the mental capacity to commit crimes.
Between seven and fourteen, the presumption became a rebuttable presumption—children were presumed to lack the capacity to form criminal intent.
The prosecution could rebut the presumption by proving that defendants between 7 and 14 had in fact formed mens rea.
The presumption of incapacity was strong at age seven but gradually weakened until it disappeared at age 14.
At age fourteen, children were conclusively presumed to have the mental capacity to commit crimes.

Modern Law

About half the states have adopted this common law approach, but changed the ages within it.
Some states exclude serious crimes—usually offenses carrying the death penalty or life imprisonment.
Modern law integrates the age of criminal responsibility with the jurisdiction of the juvenile courts.
Some states grant the juvenile court exclusive jurisdiction up to a specific age, usually between 15 and 16.
Then from ages 16 to 18, juvenile court judges can transfer, or certify, cases to adult criminal court.
The number of cases certified has increased with the public recognition that youths can and do commit serious felonies.

§ 9-27-318. Filing and transfer to the criminal division of circuit court

(a) The state may proceed with a case as a delinquency only when the case involves a juvenile:

(1) Fifteen (15) years of age or younger when the alleged delinquent act occurred, except as provided by subdivision (c)(2) of this section; or

(2) Less than eighteen (18) years old when he or she engages in conduct that if committed by an adult would be any misdemeanor.

(b) The state may file a motion in the juvenile division of circuit court to transfer a case to the criminal division of circuit court or to designate a juvenile as an extended juvenile jurisdiction offender when a case involves a juvenile:

   (1) Fourteen (14) or fifteen (15) years old when he or she engages in conduct that if committed by an adult would be:

      (A) Murder in the second degree, § 5-10-103;

      (B) Battery in the second degree in violation of § 5-13-202(a)(2), (3), or (4);

      (C) Possession of a handgun on school property, § 5-73-119(a)(2)(A);

      (D) Aggravated assault, § 5-13-204;

(E) Unlawful discharge of a firearm from a vehicle, § 5-74-107;

      (F) Any felony committed while armed with a firearm;

      (G) Soliciting a minor to join a criminal street gang, § 5-74-203;

      (H) Criminal use of prohibited weapons, § 5-73-104;

      (I) First degree escape, § 5-54-110;

      (J) Second degree escape, § 5-54-111; or

(K) A felony attempt, solicitation, or conspiracy to commit any of the following offenses:

         (i) Capital murder, § 5-10-101;
         (ii) Murder in the first degree, § 5-10-102;
         (iii) Murder in the second degree, § 5-10-103;
         (iv) Kidnapping, § 5-11-102;
         (v) Aggravated robbery, § 5-12-103;
         (vi) Rape, § 5-14-103;
         (vii) Battery in the first degree, § 5-13-201;
         (viii) First degree escape, § 5-54-110; and
         (ix) Second degree escape, § 5-54-111;

(2) At least fourteen (14) years old when he or she engages in conduct that constitutes a felony under § 5-73-119(a)(1)(A); or

(3) At least fourteen (14) years old when he or she engages in conduct that, if committed by an adult, constitutes a felony and who has, within the preceding two (2) years, three (3) times been adjudicated as a delinquent juvenile for acts that would have constituted felonies if they had been committed by an adult.

(c) A prosecuting attorney may charge a juvenile in either the juvenile or criminal division of circuit court when a case involves a juvenile:

   (1) At least sixteen (16) years old when he or she engages in conduct that, if committed by an adult, would be any felony; or

   (2) Fourteen (14) or fifteen (15) years old when he or she engages in conduct that, if committed by an adult, would be:

      (A) Capital murder, § 5-10-101;
      (B) Murder in the first degree, § 5-10-102;
      (C) Kidnapping, § 5-11-102;
      (D) Aggravated robbery, § 5-12-103;
      (E) Rape, § 5-14-103;
      (F) Battery in the first degree, § 5-13-201; or
      (G) Terroristic act, § 5-13-310.

(d) If a prosecuting attorney can file charges in the criminal division of circuit court for an act allegedly committed by a juvenile, the state may file any other criminal charges that arise out of the same act or course of conduct in the same division of the circuit court case if, after a hearing before the juvenile division of circuit court, a transfer is so ordered.

(e) Upon the motion of the court or of any party, the judge of the division of circuit court in which a delinquency petition or criminal charges have been filed shall conduct a transfer hearing to determine whether to transfer the case to another division of circuit court.

(f) The court shall conduct a transfer hearing within thirty (30) days if the juvenile is detained and no longer than ninety (90) days from the date of the motion to transfer the case.

(g) In the transfer hearing, the court shall consider all of the following factors:

   (1) The seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court;

   (2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;

   (3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted;

(4) The culpability of the juvenile, including the level of planning and participation in the alleged offense;

(5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence;

(6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile's home, environment, emotional attitude, pattern of living, or desire to be treated as an adult;

(7) Whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile's twenty-first birthday;

(8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense;

(9) Written reports and other materials relating to the juvenile's mental, physical, educational, and social history; and

(10) Any other factors deemed relevant by the judge.

h) (1) The court shall make written findings on all of the factors set forth in subsection (g) of this section.

(2) Upon a finding by clear and convincing evidence that a case should be transferred to another division of circuit court, the judge shall enter an order to that effect.

(i) Upon a finding by the criminal division of circuit court that a juvenile fourteen (14) through seventeen (17) years of age and charged with the crimes in subdivision (c)(2) of this section should be transferred to the juvenile division of circuit court, the criminal division of circuit court may enter an order to transfer as an extended juvenile jurisdiction case.

(j) If a juvenile age fourteen (14) or fifteen (15) is found guilty in the criminal division of circuit court for an offense other than an offense listed in subsection (b) or subdivision (c)(2) of this section, the judge shall enter a juvenile delinquency disposition under § 9-27-330.

(k) If the case is transferred to another division, any bail or appearance bond given for the appearance of the juvenile shall continue in effect in the division to which the case is transferred.

(l) Any party may appeal from a transfer order.

(m) The circuit court may conduct a transfer hearing and an extended juvenile jurisdiction hearing under § 9-27-503 at the same time.

Duress (compulsion)

The big idea behind the excuse of duress is that we shouldn’t be held accountable for things were forced to do against our will.
There are three important grounds for the defense:

1. There is no actus reus—because there is no voluntary act

2. There is no mens rea—the criminal intent is really that of the person who forces, not the person forced to act.

3. The defense is sound public policy—the criminal law cant force people to act against their self-interest.

§ 5-2-208. Duress

(a) It is an affirmative defense to a prosecution that the actor engaged in the conduct charged to constitute an offense because he reasonably believed he was compelled to do so by the threat or use of unlawful force against his person or the person of another that a person of ordinary firmness in the actor's situation would not have resisted.

(b) The affirmative defense provided by this section is unavailable if the actor recklessly placed himself in a situation in which it was reasonably foreseeable that he would be subjected to the force or threatened force described in subsection (a) of this section.

Mistake

Everybody knows that "ignorance of the law is no excuse."
What most people don’t know is that ignorance of fact can be an excuse.

Example: If I take from a restaurant coat room a coat that I honestly and reasonably believe is mine, I haven’t stolen the coat because I don’t have the requisite intent (the intent to deprive the owner of his property).

Why Mistake of Law is No Defense

We can’t let individuals define crimes for themselves.
Punishing ignorance encourages people to know the law.
Almost anyone could escape punishment because as a practical matter, most people don’t know the details of criminal statutes and court decisions interpreting them.

When Is Mistake of Fact a Defense?

When the mistake negates and element of the crime.

§ 5-2-206. Ignorance or mistake

(a) It is a defense to a prosecution that the actor engaged in the conduct charged to constitute the offense under a mistaken belief of fact if:

(1) The statute defining the offense, or a statute relating thereto, expressly provides that such a mistaken belief of fact constitutes a defense; or

(2) Mistaken belief of fact establishes a defense of justification provided by subchapter 6 of this chapter.

(b) Except as provided by subsection (c) of this section, a person is not relieved of criminal liability for conduct because he engages in that conduct believing that it does not, as a matter of law, constitute an offense.

(c) It is an affirmative defense to a prosecution that the actor engaged in the conduct charged to constitute the offense believing that the conduct did not, as a matter of law, constitute an offense, if he acted in reasonable reliance upon an official statement of the law contained in:

   (1) A statute or other enactment afterward determined to be invalid or erroneous; or

   (2) The latest judicial decision of the highest state or federal court that has decided the matter; or

   (3) An official interpretation of the public servant or agency charged by law with responsibility for the interpretation or administration of the law defining the offense

(d) Although ignorance or mistake of fact would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or mistake of fact of the defendant shall reduce the class or degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.

(e) A mistake of law other than as to the existence or meaning of the statute under which the defendant is prosecuted is relevant to disprove the specific culpable mental state required by the statute under which the defendant is prosecuted.

Entrapment

Entrapment is defined as government agents (police) getting people to commit crimes they would not otherwise commit.
For most of our legal history, the US courts rejected this defense.
Most jurisdictions now have some type of defense that relies on law enforcement officers encouraging crime.
The entrapment defense arose because of the difficulty in enforcing consensual crimes like drug offenses, pornography, official wrongdoing, and prostitution.
The idea of encouragement is to make sure that officers are there to get evidence first-hand to convict consensual crimes.
It is usually not enough for officers to provide an opportunity to commit crimes, or even to ask their targets to commit crimes.
They have to actively encourage their targets because most people who are about to commit crimes are wary of strangers.

Active Encouragement

Examples

Making repeated requests to commit a crime.
Forming personal relationships with suspects.
Appealing to personal considerations.
Promising benefits from committing the crime.
Supplying contraband.
Helping to obtain contraband.
Encouragement turns into entrapment when it crosses the line between acceptable to unacceptable encouragement.
Entrapment is a defense to crime; it is not a constitutional right.

Affirmative Defense

In most states, Entrapment is an affirmative defense.
This means that the defendant has to show some evidence that they were entrapped.
If they do this, the burden shifts to the prosecution to prove that the defendant was not entrapped.
The jury (or judge in case of a bench trial) decides whether officers in fact entrapped defendants.

Subjective Test

The majority of states and all federal courts have adopted a subjective test of entrapment.
The subjective test focuses on the predisposition of defendants to commit crimes.
According to this view, only defendants who acted under the following conditions could claim the defense of entrapment:
Initially, defendants had no desire to commit crimes.
The government induced defendants into criminality.
The crucial question in the subjective test is, Where did criminal intent originate?
If it originated in the defendant, then the government can’t entrap the offender.
If it originated with the government, then law enforcement did entrap the defendant.

Showing Predisposition to Commit a Crime

If the defendants offer some evidence that the government persuaded them to commit the crime, the government has to show that the defendant had a predisposition to commit the crime in one of the following ways:

Defendants’ prior convictions for similar offenses
Defendants’ willingness to commit similar offenses
Defendants’ display of criminal expertise in carrying out an offense
Defendants’ readiness to commit the crime.

§ 5-2-209. Entrapment

(a) It is an affirmative defense that the defendant was entrapped into committing an offense.

(b) Entrapment occurs when a law enforcement officer or any person acting in cooperation with him induces the commission of an offense by using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

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