What is entrapment in Virginia?
Entrapment is a potential defense to any criminal charge. If you've been entrapped, you will be found not guilty and the charges against you will be dismissed. Because entrapment can result in all charges being dismissed, it is a powerful legal doctrine, but it is very difficult to prove. To prove entrapment, the evidence must show that the government, or one of the government's agents, planned and procured someone to commit an offense. The evidence also must show that that person would not have committed the offense but for the government's actions. For example, a government agent has to meet someone, plant in their mind the idea of committing a crime, and convince them to commit the crime that they were not planning on committing before they met the government informant.
One of the most common charges where someone charged with a crimes alleges that the government entrapped them to commit the crime is when the government uses confidential informants. Confidential informants are government agents because they are working on behalf of the government. Because they are government agents, if they cause an otherwise innocent person to commit a crime that the innocent person wouldn't have committed, that is entrapment.
It's important to note that to prove entrapment, you have to have committed the crime only because the government persuaded you to. So if you regularly sell drugs, you will not be able to use the entrapment defense. Virginia law holds that if the government just provides an opportunity for you to commit an offense and you willingly accepted the opportunity, that isn't entrapment. If you've been convicted of selling drugs in the past, it will make it difficult to prove entrapment, simply because there's evidence that you've already engaged in criminal behavior without being entrapped by police. Each situation is different, though, and entrapment is a defense that every defense attorney should consider in each case. Don't let your attorney tell you that entrapment is impossible to prove.
The reason charges are dismissed if the evidence shows that the government entrapped someone is courts don't want to allow police officers to benefit from misconduct. Police officers are supposed to be protecting the public from people who are committing criminal acts on their own. Police has no business convincing innocent people to commit crimes and then arresting them and prosecuting them. The more your situation looks like police misconduct, the better. On the other hand, using confidential informants to buy drugs is common police practice. The more your case looks like a simple confidential informant drug buy, the less likely you're going to have entrapment.
Virginia case law
Here are some examples of times when defendants have tried to raise entrapment defenses. As you'll see, it's a difficult thing to do:
- Falden v. Commonwealth, 167 Va. 549 (1937).
- Howard v. Commonwealth, 17 Va. App. 288 (1993).
- McCoy v. Commonwealth, 9 Va. App. 227 (1989).
- Neighbors v. Commonwealth, 214 Va. 18 (1973).
- Schneider v. Commonwealth, 230 Va. 379 (1985).
- Swift v. Commonwealth, 199 Va. 420 (1957).