Entrapment and the Problem of Deterring Police Misconduct


Many the states currently use a version of the entrapment defense known as the “objective test,” which focuses solely on the extent of police overreaching in the case, and seeks to deter police misconduct by acquitting the defendant. Acquitting defendants as a means of deterring undercover police misconduct, however, is a public policy fraught with problems, and these problems have not been adequately addressed in the literature to date. This article applies the insights of modern deterrence theory to wrongful activity by police in undercover operations. In doing so, three general problems emerge. First, the objective test relies on an indirect or inverted form of deterrence, where the wrongdoer’s punishment consists entirely of a benefit or windfall conferred on a third party, the defendant. It is uncertain how such indirect deterrence factors into the decisionmaking process of police. Second, the objective test breaks down at the individual level. Individual officers may be pursuing less noble ends than the ultimate conviction of an arrestee, in which case the intended deterrence is inoperative. Third, and most significant, entrapment is not a constitutional defense, unlike the exclusionary rules, and therefore does not trigger the “fruit of the poisonous tree” doctrine; this allows even conscientious police to risk a successful entrapment defense being raised by the accused, if there is the potential for “greater payoffs” in the form of discovering evidence of other crimes, deterring members of a criminal conspiracy, or incriminating third parties.


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Date of this Version

February 2004