What Qualifies as Entrapment: Inducement, Predisposition, and Tests

Conduct qualifies as entrapment when a government agent induced someone to commit a crime that person was not already willing to commit. Both halves have to be true. If the defendant was predisposed to break the law before the government showed up, the defense fails no matter how aggressive the tactics were. If the government only offered an opportunity rather than creating the criminal intent, the defense also fails. That narrow space between the two is where entrapment lives.¹

The Two Elements That Have to Line Up

Every entrapment claim in federal court turns on the same pair of questions. Did the government induce the crime? And was the defendant predisposed to commit it before the government got involved? Both must break in the defendant’s favor. Prosecutors can defeat the defense by disproving either one. In practice, predisposition is where most of these claims collapse.¹

What Counts as Government Inducement

Inducement is not the same as asking. An undercover officer walking up and offering to buy drugs is a solicitation, not entrapment. Federal courts allow law enforcement to use undercover identities, supply buy money, run fake businesses, and deploy informants, none of which crosses the line on its own.²

The line is crossed when government conduct stops offering an opportunity and starts creating the desire. Courts watch for things like persistent pressure, appeals to friendship or sympathy, threats, false assurances that the conduct is legal, or offers of extraordinary financial reward. The question is whether the tactics would push a normally law-abiding person toward the crime.²

The Supreme Court’s decision in Jacobson v. United States shows how far is too far. Federal agencies spent two and a half years using five fictitious organizations and a fake pen pal to pressure a man into ordering illegal material through the mail. The Court reversed the conviction, finding the only evidence of willingness to break the law appeared after years of government persuasion. The prosecution had manufactured the very predisposition it claimed to have discovered.³

How Courts Judge Predisposition

Predisposition does not require proof the defendant had a worked-out plan. It requires evidence the defendant was willing and ready to commit the offense before any government contact. Federal jury instructions point jurors to several factors:

Whether the defendant hesitated or jumped at the opportunity
The defendant’s character and reputation, including prior convictions for similar conduct
Who first suggested the crime, the government or the defendant
Whether the defendant stood to profit from the offense
How much persuasion it took to get the defendant to act

Most federal circuits apply some version of this framework.¹

Timing matters as much as the factors. Predisposition has to exist before the government made contact. In Jacobson, the Court said the prosecution must prove predisposition “prior to first being approached by Government agents.” Interest that developed only after repeated government outreach does not count.³

Why a Sting Operation Usually Is Not Entrapment

Sting operations are legal, and this is one of the most misunderstood pieces of criminal law. Law enforcement can run fake storefronts, pose as buyers, draft phony business proposals, and operate online decoy accounts. None of that qualifies as entrapment on its own. The Supreme Court set the standard narrowly in Sorrells v. United States: the defense applies only when “the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense.”⁴

The practical question is who brought the criminal intent. An officer who approaches a known dealer and asks to buy narcotics is giving an opportunity to someone already in that business. That is lawful. In Sherman v. United States, the Court found entrapment as a matter of law on very different facts: a government informant befriended a man in addiction treatment, exploited their shared recovery, and repeatedly begged for help getting drugs. Those sales would not have happened without the pressure.⁵

The Test Depends on the Jurisdiction

Not every court analyzes entrapment the same way. Two frameworks exist, and which applies depends on where the case is tried.

The Subjective Test

All federal courts and most states use the subjective test, which traces back to Sorrells and Sherman. It focuses on the defendant’s state of mind. If the prosecution proves the defendant was predisposed, the defense fails regardless of how heavy-handed the government’s tactics were. The practical effect is that a defendant’s criminal history can sink the defense before the jury ever evaluates what the agents did.¹

The Objective Test

A minority of states follow the objective test, which the Model Penal Code also adopted. The defendant’s history drops out of the analysis. The only question is whether the government’s methods created a substantial risk that a law-abiding person would commit the offense. The Model Penal Code flags two kinds of impermissible conduct in particular: false representations that the conduct is legal, and persuasion methods likely to induce people who were not already willing to commit the crime. In objective-test jurisdictions, the entrapment question is decided by the judge rather than the jury.⁶

Who Has to Prove What

In federal court, the defendant carries the initial burden. To get an entrapment instruction in front of the jury, the defense has to produce some evidence of both government inducement and a lack of predisposition. Showing the government asked is not enough. There has to be evidence the defendant was reluctant or unwilling before the pressure started.

Once that threshold is met, the burden shifts. The prosecution must then prove beyond a reasonable doubt either that it did not induce the crime or that the defendant was predisposed. The Ninth Circuit’s model instruction states this directly.⁷ It is a high bar. In Jacobson, the Court reversed because the prosecution failed “as a matter of law” to show predisposition that existed independently of the government’s own efforts.³

Objective-test jurisdictions assign the burden differently. Under the Model Penal Code, the defendant must prove entrapment by a preponderance of the evidence, meaning more likely than not.⁶

Only Government Conduct Counts

Entrapment is a defense against government conduct, nothing else. If a friend pressured you, if a private employer ran a sting to catch employee theft, if anyone outside law enforcement talked you into the offense, the defense does not apply. The person doing the inducing has to be a law enforcement officer, a government official, or someone the government authorized, directed, and supervised.⁸

What the Defense Costs You to Raise

Entrapment is an affirmative defense, which usually means acknowledging the conduct and arguing the government caused it. Raising it opens the door to evidence about the defendant’s character, criminal history, and prior bad acts that would normally be kept out. In an ordinary trial, prosecutors cannot walk the jury through a defendant’s past convictions. Once predisposition is in play, that history comes in. For a defendant with a relevant record, the defense can backfire before it even gets argued.

Common Misconceptions

More people claim entrapment than have any legal basis for it. A few persistent myths explain the gap:

Undercover officers do not have to identify themselves if asked. Lying about being a cop during an operation does not create an entrapment defense.
A sting operation is not entrapment by itself. Providing the opportunity is lawful; manufacturing the intent is not.
Feeling pressured is not enough. The pressure has to come from a government agent and has to go well past a simple ask. Nerves about saying no to an undercover officer do not qualify.
Private conduct cannot entrap you. A civilian who pushes you into a crime may be committing their own offense, but you do not get an entrapment defense out of it.

Entrapment is a narrow defense with a high bar. It exists to stop the government from manufacturing criminals, not to rescue people who were already willing to break the law and got caught in a clever operation. Courts have held that line since Sorrells in 1932, and it has not moved much.⁴

1
Ninth Circuit Court of Appeals. Manual of Model Criminal Jury Instructions – 5.2 Entrapment
2
United States District Court District of Massachusetts. 5.06 Entrapment
3
Legal Information Institute. Jacobson v United States, 503 US 540 (1992)
4
Legal Information Institute. Sorrells v United States
5
Justia U.S. Supreme Court Center. Sherman v United States, 356 US 369 (1958)
6
University of Pennsylvania Law. Model Penal Code (MPC) – Section 2.13 Entrapment
7
Ninth Circuit Court of Appeals. 6.2 Entrapment – Model Jury Instructions
8
Ninth Circuit Court of Appeals. 5.5 Entrapment Defense – Whether Person Acted as Government Agent