What Is Entrapment in Virginia?
March 20, 2017
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 defense, 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 a crime and convinced you to commit the crime. The evidence also must show that you wouldn't have committed the crime without the government's pressure.
Here are the legal elements of entrapment:
That the defendant had no previous intent or purpose to commit the crime; and
That an officer of the law, directly or through his agents, originated in the mind of the defendant the idea to commit the crime; and
That an officer of the law, directly or through his agents, caused the defendant to commit the crime by trickery, persuasion or fraud;
In other words, to be a successful case of entrapment, a government agent has to come into contact with you, plant in your mind the idea of committing a crime, and convince you to commit the crime that you had no plans to commit in the first place. If you would have committed the crime anyway, you can't win an entrapment defense.
Cases that involve confidential informants can be strong entrapment cases. Confidential informants are government agents because they are working for the government. Because they are government agents, if they convince an innocent person to commit a crime that can be entrapment.
It's important to remember 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. The police will say that you've sold drugs in the past so we're just giving you the opportunity to continue selling drugs.
Even if you've been convicted of selling drugs in the past, each situation is different, and you should still investigate an entrapment defense. Don't let your attorney tell you that entrapment is impossible to prove.
Entrapment protects against police misconduct. Judges don't want police to benefit from their misconduct. Police officers are supposed to be protecting the public from criminals. Police have no business convincing innocent people to commit crimes and then arresting 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. Just because a confidential informant is involved in your case does not mean you have a good entrapment defense. The more your case looks like a simple confidential informant drug buy, the less likely you're going to have entrapment.
Can Police or Confidential Informants Lie?
Yes. If you ask a confidential informant if he is working with the police, they don't have to tell you the truth. It's safe to say they probably won't tell the truth. Police officers are allowed and trained to lie to you. Never speak with someone who is trained to lie.
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).