Utah Criminal Defense - Salt Lake Criminal Attorney
Utah Code 76-2-303 - Entrapment as Affirmative Defense
Utah Code 76-2-303, a person may be found not guilty of a crime if the
defendant was “entrapped into committing the offense.” Entrapment is
considered to be an affirmative defense. If the elements of an
entrapment defense are met, it can be a complete defense to a criminal
charge and can result in a not guilty verdict at trial.
Elements of Entrapment under Utah Law
entrapment law requires evidence that a police officer (or a person who
was acting in cooperation with or under the direction of the officer)
induced the defendant to commit the crime, for the purpose of obtaining
evidence to prosecute the defendant for that crime.
used by the officer must be so compelling that they create a
substantial risk the offense would be committed, and that the defendant
would not otherwise be ready to commit the crime. If the officer’s
conduct merely provides the defendant with the opportunity to commit a
crime, then the elements of entrapment are not established.
Consider the following hypothetical example:An
undercover police officer sees an 18-year-old person at a party where
alcohol is being served. The officer simply asks, "Do you want a beer?"
The 18-year-old subject (who has a history of frequent underage
drinking) readily accepts the offer.
The defendant in this example could be charged with possession of alcohol by a minor
The officer has not used overly-compelling methods of inducement.
Further, the defendant in this example appears to have been otherwise
ready to commit the crime. An entrapment defense would likely not be
Consider, however, the following alternate scenario:The
undercover police officer's invitation to have a beer is initially
declined. The defendant explains politely that he has quit drinking
because it is illegal at the age of 18, and he is trying to turn his
life around. The officer points out that "everyone else is doing it"
and that the defendant will "look like a loser" if he doesn't have a
drink. The defendant still declines the offer, and tries to walk away.
The officer moves in front of the defendant, and now challenges his
masculinity, stating that if the defendant were a "real man" that he
would not be afraid to have a drink. When the defendant still refuses,
the officer then encourages the other party-goers to start chanting
"chicken, chicken" until the defendant finally agrees and takes a small
sip of beer.
In this alternate scenario, a judge or jury
could find that the police officer's conduct created "a substantial
risk that the offense would be
committed by one not otherwise ready to commit it." The officer's
conduct goes far beyond "merely
affording a person an opportunity to commit an offense." (Note also
that in the above scenario, the police officer could also be charged
with a crime for providing alcohol to a minor
Exceptions to Entrapment Rules - Violence
Entrapment cannot be used as a defense to charges that include a
causing or threatening bodily injury to another as an element of the
crime charged. While it is theoretically possible that a police officer
might try to entrap a defendant to commit a violent crime, the Utah
legislature appears to have made a public policy decision to disallow
such a defense.
Utah law, an entrapment defense is technically available even if the
defendant denies committing the crime that has been charged. In other
words, a defendant can present two alternate defenses: 1) the first
defense is that the defendant did not commit the crime; 2) the second
alternate defense is that, if the jury finds that the defendant did
commit the crime, it was committed only because the police engaged in
alternate defenses like this in a criminal case is difficult and risky.
In essence, a defendant must argue both that he did commit the criminal
act (under entrapment) and that he did not commit the criminal act.
While such arguments are legally valid, a jury may be inclined to view
this as legalistic double talk and find the defendant guilty. Careful
consultation with an experienced criminal defense attorney is strongly
advised before attempting to utilize this defense strategy.
Procedural Issues in Presenting an Entrapment Defense in Utah
Utah Code 76-2-303, a defendant is entitled to raise the defense of
entrapment twice: once to the judge, and a second time to a jury.
the defendant makes a formal written motion, at least ten days before
trial (absent a showing of good cause for a later filing), the judge is
required to hold a hearing and take evidence on the question of whether
the defendant was entrapped to commit the offense. If the court finds
that as a matter of fact and a matter of law the defendant was
entrapped, then the court is required to dismiss the case with
prejudice (meaning that it cannot be re-filed). While this finding by
the court results in an order dismissing the case with prejudice, this
is an order that can be appealed by the prosecutor. If, after appellate
review is complete, the order is reversed, the defendant may still be
required to stand trial on the original charges.
If a judge
determines that the defendant was not in fact entrapped, or if the
dismissal is reversed on appeal, the defendant is still entitled to
raise the issue of entrapment at trial. At trial, the issue of
entrapment is treated as an affirmative defense. If evidence is
presented either by the defense or by the prosecutor that tends to show
entrapment, then the jury must find beyond a reasonable doubt that the
defendant was not entrapped.
Relevance of a Defendant's Prior Criminal Record in an Entrapment Defense
raising a defense of entrapment, one relevant issue is whether the
defendant was already inclined to commit the crime. Evidence of a
defendant's prior criminal convictions is generally not admissible,
except where the defendant testifies at trial. When a defendant
testifies, Utah's entrapment law allows a prosecutor to ask about prior
felony convictions that the defendant may have. The defendant can also
be questioned for impeachment purposes about prior testimony given by
the defendant at an entrapment hearing before a judge.
Finding a Utah Criminal Defense Attorney in Salt Lake City
The assistance of a good criminal defense attorney
can be vital to a successful defense strategy in any case. But if you
are contemplating raising a defense of entrapment, it is especially
important to have to have an experienced
lawyer on your side.
Utah criminal defense attorney Stephen Howard has successfully protected his clients rights in a wide variety of felony
criminal cases, ranging from violent felonies to white collar crime
, from homicide to DUI
, and virtually everything in between. Based in Salt Lake City, Mr. Howard offers legal services to clients throughout Utah.
today to arrange
for an initial confidential consultation.
RELATED CRIMINAL CODE SECTIONS
76-2-302 - Compulsion as an Affirmative Defense
Utah Code 76-2-202 - Accomplice LiabilityMore Utah Criminal Code Provisions