While the burden is always on the prosecution to establish guilt beyond a reasonable doubt, the burden is on the defense to put forth certain arguments, including entrapment.

Alfonso Gambone
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A Philadelphia criminal defense attorney representing accused persons throughout Pennsylvania and New Jersey.

Our criminal defense blog is based on questions that we receive from clients in Pennsylvania and New Jersey and many of our cases come from individuals who live in the City of Philadelphia, its surrounding counties (Bucks, Delaware, & Montgomery) as well as South Jersey (Burlington, Camden, Cumberland, & Gloucester). Clients often ask about legal terms that they hear on television or on the internet. It’s important to keep in mind that a person should never act on a legal concept or advice which they hear on TV, radio, or over the internet, and always discuss it with a criminal defense lawyer.


The legal term entrapment frequently comes up during the course of a client consultation and it’s important to understand that it is usually not a viable criminal defense! Entrapment occurs when a law enforcement official (police) or a person acting with police, induces or encourages another person to engage in conduct by either knowingly making a false representation to the individual that the conduct is lawful. Entrapment also occurs when police or law enforcement use persuasion or other inducement to create a substantial risk that a person will commit a crime when they are not otherwise ready to commit it. While the burden is always on the prosecution to establish beyond a reasonable doubt that a person committed a specific crime, regardless of its severity (felony or misdemeanor), the burden is on the defense to put forth certain arguments, including entrapment.  This is similar to a self defense argument in the case of violent crime such as aggravated assault or murder. 


 If the defense asserts the argument of entrapment it needs to establish by a preponderance of the evidence that the accused individual’s conduct occurred in response to an entrapment. In order for a person to have been entrapped it isn’t necessary that the accused is actually misled! Just as long as the statements by police or law enforcement were designed to induce a belief that the conduct was lawful. Please keep in mind that even if the defendant knows that the conduct is potentially criminal, any encouragement by police on an individual who is not otherwise ready to commit a crime is entrapment. The defense must establish by a preponderance of evidence that police conduct created a substantial risk that an otherwise honest, law-abiding citizen, would have been persuaded to commit a crime.


While entrapment is obviously a legal defense, the criminal statutes in Pennsylvania (18 § 313) and New Jersey (2C:2-12) which addresses it () targets unconventional investigatory methods and police tactics. The entrapment rule therefore focuses on police misconduct, which therefore should not be focused so much on the defendant’s conduct at the time of the alleged incident.


Entrapment can be difficult to prove especially in cases involving the illegal possession of drugs, guns, or firearms. One of the critical questions your attorney should ask is whether, but for police misconduct, would the prosecution have the evidence in question, specifically the transaction involving the illegal narcotics or guns. The defense may show that police misconduct induced an innocent person to commit a crime. For more information on criminal defense strategies and practices I encourage you to keep reading my blog and visit my free download section which contains books and videos at no cost.

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