702-237 Entrapment. (1) In any prosecution, it is an affirmative defense that the defendant engaged in the prohibited conduct or caused the prohibited result because the defendant was induced or encouraged to do so by a law enforcement officer, or by a person acting in cooperation with a law enforcement officer, who, for the purpose of obtaining evidence of the commission of an offense, either:

(a) Knowingly made false representations designed to induce the belief that such conduct or result was not prohibited; or

(b) Employed methods of persuasion or inducement which created a substantial risk that the offense would be committed by persons other than those who are ready to commit it.

(2) The defense afforded by this section is unavailable when causing or threatening bodily injury is an element of the offense charged and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment. [L 1972, c 9, pt of 1; gen ch 1993]

 

COMMENTARY ON 702-237

 

The rationale for providing a defense based on entrapment does not reside in the fact that entrapped defendants are less culpable or dangerous than those who formulate their intent without outside inducement. If that were the case, a defense based on similar inducement and encouragement by private citizens would have to be recognized. The real basis for the defense of entrapment is a purpose to deter improper conduct on the part of law enforcement officials. The harm done by increasing the risk of penal conduct by otherwise innocent persons, the improper utilization of police resources, the suspicion that entrapment tactics are the result of personal malice, and injury to the stature of law enforcement institutions, all contribute to condemn entrapment. Providing a defense to conduct which would otherwise be a basis for penal liability because of improper tactics of law enforcement officials is an extreme measure, but no other, more effective, method presents itself.

Consistent with the reason for the defense, the Code's formulation of the standard of conduct regarded as sufficient to establish entrapment focuses not on the predisposition of the defendant to engage in the prohibited conduct, but rather on the conduct of the law enforcement official (or person acting in cooperation with the official). This distinction is of critical importance in analyzing subsection (1)(b). Regardless of the defendant's past record or present predisposition to engage in a certain type of penal conduct, the defendant will be afforded a defense if the defendant was induced or encouraged to engage in such conduct by methods which create a substantial risk of persuading a person who was not ready to commit the offense. For example, a police informer makes extraordinary appeals of friendship to the defendant, a long-time narcotics peddler, and thereby moves the defendant to sell the informer narcotics. Notwithstanding the defendant's predisposition to peddle narcotics, the defense is available. Conversely, merely because a defendant was not predisposed to committing the offense, prior to the inducement by an official, does not automatically afford the defendant the defense of entrapment. Thus, for example, an undercover narcotics agent offers to buy, at a handsome price, all the narcotics which the defendant can obtain; the defendant, a person without any prior thought of peddling narcotics, on the basis of such inducement obtains narcotics and sells them to the undercover agent; the defense of entrapment should not be available. The offer to buy narcotics is not a method which creates a substantial risk that the offense would be committed by persons other than those ready to commit it.

Subsection (3) limits the defense of entrapment so that it does not apply to offenses causing or threatening bodily harm to a person other than the entrapper. Although "[n]o reported entrapment case has been found involving a criminal act in which great physical damage has taken place," the limitation seems wise.[1] Here, there are other factors which discourage such conduct by law enforcement officials and persons acting in cooperation with them. As the Model Penal Code commentary has pointed out,

in cases of crimes causing or threatening bodily injury to persons other than the entrapper, much of the reason for the defense fails. Public opinion would, in all probability, demand the punishment of the conniving or cooperating officers. The injured persons would have motivation to seek civil redress. It will not seem generally unfair to punish someone who has caused or threatened bodily injury to another although he has been induced to his action by law enforcement officials. A person who can be persuaded to cause such injury presents a danger that the public cannot safely disregard.[2]

Except for the apparent faith in the efficacy of public opinion, these factors seem relevant and persuasive.

Out of an abundance of caution it should be noted that the phrase "person acting in cooperation with a law enforcement officer" is intended to cover both public officials and private citizens.

The Code makes entrapment an affirmative defense. It is not unfair to require a defendant, who desires to escape from penal liability not on the basis of the defendant's own lack of culpability but rather on the basis of the additional culpability of law enforcement officials with respect to their official conduct, to bear the burden of proving by a preponderance of the evidence the excusing condition.

In Hawaii, the standard for entrapment has heretofore focused on whether the defendant had conceived the intent or "criminal design or purpose" to undertake the prohibited conduct or whether the defendant had been "lured" into the conduct by a law enforcement official.[3] The standard did not focus, as the Code does, on the quality of the tactics used by the official. Moreover, unlike the Code provision, previous Hawaii law did not require the defendant to carry the burden of proof on the defense of entrapment; formerly the defendant prevailed if the evidence raised a reasonable doubt on that point.

 

Case Notes

 

Instruction on entrapment and burden of proof. 58 H. 234, 566 P.2d 1370 (1977).

Provisions of this section and 701-115, requiring defendant to prove entrapment by preponderance of the evidence, do not violate due process. 58 H. 234, 566 P.2d 1370 (1977).

Unless evidence is undisputed and clear, entrapment is a jury question. 58 H. 234, 566 P.2d 1370 (1977).

Defendant has burden of proof on entrapment; no violation of due process. 58 H. 479, 572 P.2d 159 (1977).

Jury finding of no entrapment upheld. 63 H. 536, 631 P.2d 181 (1981).

No valid claim that police induced criminal actions. 67 H. 608, 699 P.2d 983 (1985).

Use of drunk decoys constituted entrapment. 68 H. 635, 726 P.2d 266 (1986).

"Reverse buy" police operation designed to detect drug-related offense was not entrapment where officer merely provided defendant an opportunity, as opposed to inducement, to commit charged offense; objective test discussed. 73 H. 179, 830 P.2d 492 (1992).

Instruction which tracked the language of subsection (1)(b), plainly required defendant to prove by a preponderance of the evidence that defendant was entrapped, that was a correct statement of the law; there was substantial evidence to support jury's conclusion that defendant failed to prove entrapment by a preponderance of the evidence. 77 H. 72, 881 P.2d 1218 (1994).

Defendants did not prove entrapment under subsection (1)(b) by preponderance of evidence as required by 701-115(2)(b); officer's conduct merely provided defendants with opportunity to commit offense of promoting a dangerous drug in the first degree. 82 H. 499 (App.), 923 P.2d 916 (1996).

Where no evidence of any encouragement, persuasion, or inducement on the part of undercover police officer vis-a-vis defendant or any of defendant's principals, no basis for instructing jury on any kind of entrapment defense. 92 H. 98 (App.), 987 P.2d 996 (1999).

Where it was the defendant and not the law enforcement officer posing as a 14-year old girl who (1) initiated the internet chat room contact as well as the sexual aspects of the conversation, (2) after learning that the "girl" was 14 years old, repeatedly asked if she would engage in oral sex and sexual intercourse, and (3) the "girl" repeatedly expressed hesitation and gave defendant opportunities to back out of the illicit arrangements proposed by defendant, the transcripts of defendant's conversation with the "girl" provided convincing evidence that defendant was not entrapped. 120 H. 480 (App.), 210 P.3d 3 (2009).

 

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702-237 Commentary:

 

1. M.P.C., Tentative Draft No. 9, comments at 23 (1959).

 

2. Id. at 23-24.

 

3. Territory v. Achuck, 31 Haw. 474 (1930).

 

 

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