Criminal Law - Drug Trafficking The Entrapment Defense
June 21, 2021
(The case law on admissibility of statements of inducement)
To establish the entrapment defense , the defendant has to testify to the statements told to him by the Confidential Informant (CI) which induced him to commit the crime. And, the defendant will want to testify about his statements to the CI that he initially refused to commit the crime. If the judge or prosecutor argues that this testimony is barred under the Hearsay Rule, they are wrong.
A statement is hearsay only if it is admitted for the truth of the matter asserted. I have had entrapment defenses where the CI told my client in essence that “I will fire you if you do not get the meth” or “I will evict you if you do not get the meth”. In both cases, the defendants also wanted to testify to their statements to the CI that they did not want to commit the crime. In establishing our entrapment defense, we did not care if the CI was going to fire the person or evict the person. All we cared about was that the statement was made, and it created sufficient fear in the mind of the defendant that he committed the crime. Therefore, these statements were not hearsay because they were not being offered to prove the truth of the matter asserted. Also, the statements of denial by the defendant were not being offered for their truth. Although we would like the fact finder to believe those statements, the fact is, those statements were being offered to show that the CI continued to coerce the defendant despite a clear statement by the defendant that he was not “predisposed” to commit the crime.
Crumley v. State, 534 So.2d 909 (Fla. 1st, DCA 1988)- In a trafficking in cocaine case where the defendant asserted the entrapment defense, it was reversible error to exclude the defendant's testimony as to conversations he had with the confidential informant
1 Do not forget. There are two kinds of entrapment: objective and subjective. Objective entrapment focuses upon the bad conduct of the police and their agents. If the conduct is sufficiently egregious, the charge will be dismissed even though the defendant was in fact predisposed to commit the crime. This motion must be brought prior to trial. Subjective entrapment is a question for the jury and the defense must establish that the defendant was not predisposed to commit the crime.
2 The problem in Sant Rosa County that allowed entrapment to occur on the watch of honest detectives is that the detectives were operating under the wrong definition of “confidential informant.” The Sheriff Policy required the detectives to monitor the conversations between the CI and the target. But that Policy also limited the definition of CI to persons who were being paid or working off charges. Therefore, the detective was not monitoring the actions of the CIs in my cases because the Cis were volunteers. However, the law on subjective entrapment defines any person working in cooperation with the police regardless of whether they are volunteers or not. F.S. 777.201.
which induced him to commit the crime. The statements were not offered for the truth of the matter asserted, but to show their impact upon the defendant, especially to show inducement to commit the crime.
Ortiz v. State, 654 So.2d 654 So.2d 1002 (4th DCA, 1995)- In a trafficking in cocaine case where the defendant asserted the entrapment defense, it was reversible error to exclude the defendant's statements that the confidential informant told the defendant that he needed help to sell cocaine so he can pay off the people who kidnapped his child. The statements were not offered for the truth of the matter asserted, but to show their impact upon the defendant.
Burkley v. State, 922 So.2d 1033 (4th DCA, 2006)- In a sale of marijuana case where the defendant asserted the entrapment defense, it was reversible error to exclude testimony that the defendant told the undercover detective that he did not deal in drugs. The statement was not offered to prove the truth of the matter asserted.
See also, Dippolito v. Florida, 275 So3d. 653, 658 (Fla. 4th, DCA, 2019), “ . . . .an informant’s conduct of targeting an innocent person under her supervision and exploiting her weaknesses without any efforts from law enforcement to avoid entrapment or monitor the informant’s activities, constituted objective entrapment”.