ENTRAPMENT – METHODS OF PERSUASION

ENTRAPMENT – METHODS OF PERSUASION The defendant has raised the affirmative defense of entrapment. Before you may consider entrapment, you must first determine whether the prosecution has proven all of the elements of (specify in the disjunctive charge(s) and any instructed included offense(s)) beyond a reasonable doubt. If you unanimously find that the prosecution has not proven all of the elements of (specify in the disjunctive charge(s) and any instructed included offense(s)) beyond a reasonable doubt, then you must find the defendant not guilty of that offense(s) without considering entrapment. If you unanimously find that the prosecution has proven all of the elements of (specify in the disjunctive charge(s) and any instructed included offense(s)) beyond a reasonable doubt, then you must consider entrapment. Entrapment is an affirmative defense to the charge(s) of (specify charge(s) and any instructed included offense(s)). A person is entrapped if he/she engaged in the prohibited conduct or caused the prohibited result because he/she was induced or encouraged to do so by a law enforcement officer [or by a person acting in cooperation with a law enforcement officer] who, for the purpose of obtaining evidence of the commission of an offense, employed methods of persuasion or inducement which created a substantial risk that the offense would be committed by persons other than those who are ready to commit it. Entrapment has two elements. These two elements are: 1. That the defendant engaged in the prohibited conduct or caused the prohibited result because he/she was induced or encouraged to do so by a law enforcement officer [or by a person acting in cooperation with a law enforcement officer]; and 2. That the law enforcement officer [or a person acting in cooperation with a law enforcement officer] did, for the purpose of obtaining evidence of the commission of an offense, employ methods of persuasion or inducement which created a substantial risk that the offense would be committed by persons other than those who are ready to commit it. The defendant must prove entrapment by a preponderance of the evidence. This means that the defendant must prove that it is more likely than not, or more probable than not, that each element occurred. In determining whether the defendant has proven entrapment by a preponderance of the evidence, you must consider all of the evidence that has been presented to you regardless of who presented it. If you unanimously find that the defendant has proven both elements of entrapment by a preponderance of the evidence, then you must find the defendant not guilty of (specify in the disjunctive charge(s) and any instructed included offense(s)). If you unanimously find that the defendant has not proven both elements of entrapment by a preponderance of the evidence, then you must find the defendant guilty of (specify in the disjunctive charge(s) and any instructed included offense(s)).* If you are unable to reach a unanimous agreement as to whether entrapment has been proved or not been proved, then a verdict may not be returned on (specify in the disjunctive charge(s) and any instructed included offense(s)). [Whether or not the defendant may have known a person or persons involved in the drug culture does not establish that he/she was not or could not be entrapped.] [An offer to buy narcotics, in and of itself, is not a method which creates a substantial risk that the offense would be committed by persons other than those ready to commit it.] *Modification of this sentence is required if any defense in addition to entrapment is submitted to the jury. Commentary See HRS § 702-237. Subsection 702-237(a) addresses entrapment by "false representations designed to induce the belief that such conduct or result was not prohibited," and subsection 702-237(b) addresses entrapment by "methods of persuasion or inducement which created a substantial risk that the offense would be committed by persons other than those who are ready to commit it. The first subsection is covered by Prior Hawai`i law made entrapment an ordinary defense, but in 1972 Hawai`i adopted Model Penal Code § 2.13, which shifted the burden to the defendant and made entrapment an affirmative defense. See State v. Anderson, 58 Haw. 479, 572 P.2d 159 (1977); Commentary to HRS § 702-237. This change requiring the defendant to prove entrapment by a preponderance of the evidence did not violate due process. Anderson, 58 Haw. 479, 572 P.2d 159; State v. Kelsey, 58 Haw. 234, 566 P.2d 1370 (1977). When an accused can show, by a preponderance of the evidence, that he was induced or encouraged into committing the conduct proscribed, he is entitled to an acquittal on the charge. State v. Nakamura, 65 Haw. 74, 648 P.2d 183 (1982). While entrapment may be raised by a pre-trial motion to dismiss, unless the evidence is undisputed and so clear it presents a legal question as a matter of law, entrapment is a jury question. State v. Agrabante, 73 Haw. 179, 830 P.2d 492 (1992) (reverse buy operation did not constitute entrapment as a matter of law but jury may be instructed on the defense if evidence of government inducement); State v. Powell, 68 Haw. 635, 726 P.2d 266 (1986) (drunk decoy operation was entrapment as a matter of law); State v. Provard, 63 Haw. 536, 631 P.2d 181 (1981) (conflict in evidence whether police conduct constituted entrapment and therefore issue was for jury to resolve); Kelsey, 58 Haw. 234, 566 P.2d 1370 (evidence disputed as to conduct pertaining to entrapment question and thus issue was for jury to resolve). According to HRS § 702-237(2), "[t]he defense afforded by this section is unavailable when causing or threatening 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." Hawai`i follows the "objective" view of entrapment, and the trier of fact must focus on the conduct of law enforcement rather than the defendant's predisposition to commit the offense charged. State v. Reed, 77 Hawai`i 72, 881 P.2d 1218 (1994); Agrabante, 73 Haw. 179, 830 P.2d 492; Powell, 68 Haw. 635, 726 P.2d 266; Nakamura, 65 Haw. 74, 648 P.2d 183; Provard, 63 Haw. 536, 631 P.2d 181; Anderson, 58 Haw. 479, 572 P.2d 159. When the evidence does not support a finding that police conduct would have the probable effect on a reasonable person of inducing her to engage in prohibited activity, a claim of entrapment is not established. State v. Tookes, 67 Haw. 608, 699 P.2d 983 (1985). On the other hand, when an officer told the defendant that, "[e]ven probation officers smoke marijuana," a substantial question existed as to whether the conduct of the officer entrapped the defendant. State v. Erickson, 60 Haw. 8, 10, 586 P.2d 1022, 1023 (1978). The doctrine of entrapment does not extend to acts of inducement on the part of a private citizen who is not a law enforcement officer or a person acting in cooperation with a law enforcement officer. Agrabante, 73 Haw. 179, 830 P.2d 492 (rejecting theory of derivative or vicarious entrapment).