[tptacek]

This whole series is pretty great. The cheat sheet here:

Entrapment requires:

(1) a causal relationship between police action and the accused's commission of a crime, and

(2) the police overcoming some demonstrable resistance to the commission of that crime, or the accused otherwise demonstrating that the police somehow corrupted them into committing a crime they would not have been predisposed to commit otherwise.

The "entrapment myths" in the comic:

1. That the police have to tell you that they're cops, or are somehow not allowed to deceive you into committing a crime. (No).

2. That the police cannot ask you to commit a crime. (No).

3. That the police cannot break the law themselves to get themselves into a position to see you commit a crime. (No).

4. That the police cannot help you commit a crime. (No).

5. That the police cannot allow you to commit a crime or somehow give you the impression that your actions are lawful and then arrest you. (No).

The law expects you to actively resist an entreaty from anyone --- undercover cop, uniformed cop, friend, family member --- to knowingly break the law.

The example the comic gives of an unreasonable effort to break through resistance: appealing to a friend to aid in the commission of a crime because your life depends on it, putting the accused in a position where a reasonable ordinary person might choose to participate in the crime as the lesser of two evils. That's entrapment.

Furthermore, as I understand it, and this may be state-by-state, but entrapment is doubly difficult to employ in a defense because it's an affirmative defense: to raise "entrapment", you must first acknowledge that you committed the crime in all its particulars, and then claim that your excuse was that you were entrapped.

[melville_X]

Yes that's the definition of entrapment as interpreted by American courts. Very challenging for lawyers to use as a defense. Which is exactly why law enforcement loves using informants and undercover agents for everything these days. In heavily bureaucratic agencies like the FBI, the only thing that matters is looking good to management by getting arrests and 'foiling plots'. So why not go for some easy prosecutions? You'll be upper management in no time.

Plus there are a ton of dumb people and nearly everything is a crime these days, so all you have to do his handout a crime on a platter and fill prisons with the incompetent criminals who take the bait.

Why hunt down criminals when you can fish for dumb ones.

[tptacek]

The crimes we're talking about here aren't "the crimes every American commits while squeezing orange juice in the morning" crimes.

Meanwhile, it is extraordinarily difficult to catch people in the act of committing computer crimes; the most effective investigative approach to enforcing computer crime laws probably is to find people who are predisposed to commit them, stage an opportunity to commit a specific instance of it, and then apprehend them. So, yes, computer crime enforcement does have a "fishing for dumb people" element to it.

What would be really interesting in a thread like this is, after pointing out how US criminal law makes it hard to raise an entrapment defense, providing specific examples of how some other country's criminal law handles the same circumstances.

[walshemj]

There was a BBC program a couple of years back on secret services MI5/6 and they contrasted how we do it in the UK and The USA.

One example was an IRA arms dealer caught bang to rights actually at the buying point he got off on a tiny technicality - whereas the amount of stuff that the FBI where allowed to do was interesting and slightly disturbing.

It might have been on PBS or BBC America at some point

[afarrell]

yes, you can find all of them at http://lawcomic.net/guide/?page_id=5. Including this handy 4th amendment guide: http://lawcomic.net/guide/?p=2256