212 Highlights by Brody Larson: 

 MINNESOTA LAW REVIEW

I. INTRODUCTION

Consensual crimes are unusually difficult to detect, since

the forbidden acts take place in private and none of the

participants is likely to complain. To expose such crimes, police

have had to resort to the use of informers and undercover offi-

cers. Often, these agents will solicit the commission of a criminal

act for purposes of prosecution. For example, agents offer to

purchase drugs from suspected narcotics dealers in order to

gather evidence of guilt.

Some solicitations are innocuous. An agent who merely asks

for a drink in a speakeasy creates no danger of corrupting the in-

nocent. However, because persons engaged in criminal enter-

prises are wary of strangers, police usually must do more than

simply approach a target and request the commission of a crime.

They must work through an informer trusted by the target, or

have an undercover officer cultivate the target's trust. More-

over, it may be necessary to make multiple requests before

the target agrees to commit the crime solicited.

When agents do more than make a single arms-length re-

quest, they create a danger of inducing crimes by persons not al-

ready engaged in criminal enterprise. For example, an agent

who has formed a close relationship with a drug user may,

by appealing to friendship, be able to persuade him to sell

drugs even though he has never previously done so. The

danger increases if the agent also offers windfall profits, plays

on the target's sympathy (as by pretending withdrawal symp-

toms), or provides assistance that facilitates the crime (as by giv-

ing the target drugs to sell to another agent).

Because of concern about the dangers created by police solic-

itation of crime, almost every American jurisdiction has made

the defense of entrapment available to criminal defendants. The

defense has won acceptance in the federal courts and in every

state except Tennessee.' However, agreement that a defense by this name should be recognized has not been accompanied by con-

sensus about what its elements should be.

Two opposing versions of the entrapment defense have re-

ceived substantial authoritative support. The first, usually la-

beled the "subjective" 2 approach, focuses upon the culpability of

the particular defendant, asking whether he was predisposed to

commit crimes of the nature charged. If he was ready and will-

ing to commit the offense at any favorable opportunity, then the

entrapment defense will fail even if a police agent used an un-

duly persuasive inducement.3

The other version of the defense, which I will call the "hypothetical-person" approach,4 focuses upon the inducements used

by police agents. If an agent used inducements likely to cause

a nondisposed person to commit the crime charged, then the fact

that the particular defendant was ready and willing to commit

it will not defeat the entrapment defense.5 Proponents of this

approach hope to deter police misconduct, and to keep the crimi-

nal justice system from being soiled by unworthy action.0

Supreme Court Justices have been the oracles of both theo-

ries of entrapment. In two leading cases decided in 1932 and 1958

-Sorrells v. United States7 and Sherman v. United Statess -the

Court endorsed the subjective defense. However, articulate mi-

norities, led by Justices Roberts and Frankfurter respectively,

urged a version that would focus solely on the issue of whether

police conduct had fallen below proper standards. 9 In the 1973

case of United States v. Russell,'0 a sharply divided Court de-

clined to depart from the doctrine established in Sorrells and

Sherman; four dissenters reiterated the views expressed by the

earlier minorities."

In 1962, the American Law Institute endorsed the minority

view by placing a hypothetical-person definition of entrapment

in its Model Penal Code.' 2 However, despite support by an overwhelming majority of commentators, 3 the hypothetical-

person defense did not achieve authoritative acceptance in any

jurisdiction until Alaska adopted it by judicial decision in

1969.14 Since then, two other state supreme courts have followed suit,15 and at least four other states have adopted it by

statute. 6 These cases and statutes have invariably formulated

the defense in language similar to that contained in the ALI's Model Penal Code or the new federal code proposed by the

Brown Commission.17

This Article will evaluate the federal defense and the hypo-

thetical-person defense. Although these versions of the defense

do not exhaust the universe of possible alternatives, 8 they do

seem to be the ones most likely to receive authoritative support.

Therefore, it seems worthwhile to ask which of these two ortho-

dox formulations is more desirable.

My thesis is that the federal defense, with some modifica-

tions, is preferable to the hypothetical-person defense. I will be-

gin with a description of the two defenses, with emphasis upon

how they deal with predisposition and agent misconduct. On the

basis of this description, I will argue that the hypothetical-person

defense creates a greater risk of unjust treatment of individual

defendants than does the federal defense, and that the possibility

of beneficial effects upon conduct of police agents is not strong

enough to justify taking this risk.

I will also respond to various criticisms of the federal test.

Commentators have repeatedly argued that it is based on a ficti-

tious view of legislative intent; that it is confusing and obscure;

that its emphasis upon the "innocence" of the defendant is incon-

sistent with the rule that entrapment by a private person is no

excuse; and that it allows the introduction of unreliable and

prejudicial evidence. Most of these criticisms have not been an-

swered. Academic commentary has lopsidedly favored the hypo-

thetical-person approach, 19 and judicial opinions supporting the federal test have avoided many of the issues raised by scholars. 20

Finally, I will discuss how the burden of proof should be allo-

cated, and whether the defense should be the province of the

judge or of the jury. I have placed this discussion toward the

end of the Article because resolution of these procedural is-

sues depends largely upon one's views about the substantive is-

sues.

At the close of the Article I have placed a summary of its

principal themes and conclusions.

II. DESCRIPTION OF CURRENT DOCTRINE

The federal defense and the hypothetical-person defense dif-

fer both in substantive definition of entrapment and in ancillary

rules about the admissibility of evidence. This section describes

those differences. Subsequent sections will evaluate the com-

parative merits of the two defenses.

A. SuBsTAxTrm DocTmNE

1. The Hypothetical-Person Defense

Under the hypothetical-person defense, the issue of whether

an agent2 ' used an improper inducement is dispositive. If an

agent caused the commission of an offense with an improper in