ENTRAPMENT
(N.J.S.A. 2C:2-12) model jury charge
The
defendant claims that he/she was entrapped. That means that he/she does not necessarily deny that he/she violated the criminal laws.[1] Therefore, if you find beyond a reasonable
doubt that he/she did commit the crime(s) charged, you
should then consider his/her claim that the law enforcement
officials (and/or their agent or informant) caused him/her to commit the offense by methods
which were contrary to legal standards.
The
law authorizes law enforcement officers to use stealth and strategy, decoys,
traps and deception as a tactic to outwit and catch those engaged in criminal
enterprise. But the law does not
authorize a law enforcement officer whether by himself/herself
or through an agent or informant, or together with others to trap another
person by inducing or encouraging him/her to commit an offense and then as a
direct result of that inducement or encouragement, cause that other person to
commit an offense.
Therefore,
to establish entrapment as a defense, the burden is on the defendant to prove
by a preponderance of evidence that a law enforcement officer (either by (himself/herself)
or through an agent or informant, or together with others) did induce or
encourage the defendant to commit the crime(s), and as a direct result thereof,
(he/she) did cause the defendant to commit the offense(s) charged.
The
defendant must prove by a preponderance of evidence that he/she was induced or encouraged to commit
the offense by the law enforcement officers (the officer's agent or informant,
or others) (select appropriate) or knowing false representations which by their
very nature created a substantial risk that the crime would be committed by an
average person who was NOT otherwise ready to commit it.
In
addition, the defendant must prove that the police conduct in fact caused him/her to commit the crime; in other words,
that the crime was a direct result of the police action.
(Where the State introduces evidence of the
defendant's predisposition to commit the crime, the following should be added.)
The
State has introduced evidence to demonstrate, if believed, that the defendant
was not an innocent person who would not have committed the offense were it not
for the inducement of the law enforcement officer. That in fact he/she
was predisposed to commit the crime.
Therefore, for this purpose, the Court has permitted the State to
introduce for your consideration evidence of (select appropriate) the
defendant's previous convictions of crime; his/her
reputation for criminal activities; evidence that he/she
was unusually susceptible to inducement, or that an ordinary person would not
have succumbed to the type of inducement or opportunity to commit the offense
to which the defendant succumbed.[2]
Whether
such evidence along with other facts and surrounding circumstances, shows a
predisposition on the part of the defendant to commit the offense is for you to
determine.
If
you find that the defendant had been predisposed to commit the offense even
without the law enforcement officer's participation or inducement, then the
defendant's participation was not the direct result of the officer's activity,
and the defense of entrapment has not been proven and it is unavailable to him/her.[3]
Entrapment
is an affirmative defense. This means
that the defendant has the burden of proving it by , as I have said before, a
preponderance of evidence. That means,
by the greater weight of believable evidence.
A preponderance means evidence that is more probable, more persuasive,
or of a greater probative value. By that
I mean that the evidence introduced on behalf of the defendant must weigh more
heavily in your minds and be more convincing than that introduced on behalf of
the State. It does not mean that the
defendant must have more witnesses than the State. The burden of proof is sustained by the quality
of the evidence rather than the quantity.
If
you find that the State has failed to prove beyond a reasonable doubt any
element of the offense, or the defendant's participation in the offense, you
must find the defendant not guilty and you need not consider the evidence as to
the defendant's claim of entrapment.
If
you find that the State has proven beyond a reasonable doubt each essential
element of the offense, you must then consider the evidence as to the claim of
entrapment.
If
you find that the defendant has established the defense by a preponderance of
evidence, you must find the defendant not guilty. On the other hand, if you find that the
defendant has not established the defense by a preponderance of evidence, you
must find the defendant guilty.[4]
[3] When official conduct inducing an
offense is so egregious as to impugn the integrity of a court that permits a
conviction, predisposition of a defendant becomes irrelevant, and there may be
entrapment as a matter of law. State
v. Molnar, 81 N.J. 476.
[4] The
defense of entrapment 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. N.J.S.A.
2C:2-12C.
