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How can entrapment be used as an affirmative defense?

On Behalf of | Jul 31, 2015 | Criminal Defense |

When individuals in New York are charged with a crime, it is important to fully understand the charges against them, as well as the situation leading to the criminal charges. The actions of law enforcement that resulted in the arrest of the accused could be used as evidence in a defense against the charges. If it is suspected that a defendant was induced or encouraged to carry out the illegal action they are being charged with, he or she could assert a defense of entrapment.

How can entrapment be used as an affirmative defense? If the accused believes that a government official induced them to commit a crime, entrapment might be the appropriate defense option. The theory of this defense is that government officials should not be allowed to provoke, induce or encourage individuals to commit a crime and then convict the individual for committing that crime.

According to section 40.05 of New York penal laws, entrapment can be used as a defense option when it is believed that a defendant was engaged in the criminal conduct they were charged with because he or she was induced or encouraged by a public servant that was seeking to obtain evidence against the defendant for the purpose of criminal prosecution.

In order for an entrapment defense to be successful, it needs to be proven that the defendant was not already predisposed to commit the crime they were charged with. This means that if the defendant would have committed the crime without encouragement or inducement, then it is unlikely the individual was entrapped. Additionally, if the accused has a history of the crime they were changed with or have a criminal background similar to the crime committed, entrapment may not be an effective defense.

When a person is accused of a crime, it is important that they understand they are afforded the right to invoke a defense. Defendants should take the time to familiarize themselves with the defense options available to him or her. This could help the accused avoid harsh penalties by reducing or dismissing some or all of the charges against them.

Source:, “New York Penal – Article 40 – § 40.05 Entrapment,” accessed July 27, 2015