Sometimes police officers have to work undercover to get to the bottom of a criminal investigation. However, there are some situations where an officer’s behavior crosses the line into entrapment. Depending on what happened between the defendant and the officer, it might be possible to successfully raise entrapment as a defense against various criminal charges. In this article, our criminal defense lawyers will explain the concept of entrapment, and when it can be used as a legal defense in New Jersey.

Is it Police Entrapment to Lie to a Suspect?

Entrapment occurs when a police officer induces a person to commit a crime the person otherwise would not have committed. This element of induction is an absolutely critical component of entrapment, a legal concept which is widely misunderstood.

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Contrary to popular belief, a police officer has not necessarily engaged in entrapment simply because he or she lied to a criminal suspect. If this were the case, it would become completely impossible to perform undercover operations effectively. Resorting to dishonesty is a legally acceptable tactic when members of law enforcement are using a false identity.

Strategic dishonesty also plays a role in the interrogation of criminal suspects. It is legal for a police officer to make misleading or even outright false statements during an interrogation, as long as the suspect is read his or her Miranda Rights before the interrogation begins. For example, the interrogating officer might state or imply that he or she already has incriminating evidence which they do not actually possess, and which may not even exist. To give another example, an officer might tell a suspect that another person has already implicated them in the crime, even though they haven’t spoken to the other suspect yet.

With that being said, there are still some instances where an officer’s dishonesty exceeds what’s considered acceptable from a legal standpoint. In New Jersey, under N.J.S.A. § 2C:2-12 an officer commits entrapment when he or she encourages or induces someone into committing a criminal offense “for the purpose of obtaining evidence of the commission of an offense.” In other words, an officer goads another person into committing a crime for the express purpose of gaining evidence that a crime was committed. In order for the act to be considered entrapment, the officer must also either:

  • Make “knowingly false representations” — that is, lie — in order to convince the person that the offense he or she is committing isn’t actually a crime. (For instance, if an officer ensures someone that an illegal drug or weapon is actually legal, resulting in drug charges or weapons crime charges.)
  • Use “methods of persuasion” to increase the likelihood that someone who would not ordinarily engage in criminal acts, engages in criminal acts. (For instance, an officer persuading someone with a clean criminal record to commit a theft crime.)

When Entrapment is a Defense to Criminal Charges?

N.J.S.A. § 2C:2-12(b) is of tremendous importance to defendants and their loved ones. This portion of the statute provides that, with one exception which we’ll address momentarily, any defendant “shall be acquitted [found not guilty] if he [or she] proves by a preponderance of evidence that his [or her] conduct occurred in response to an entrapment.” While this is powerful news for defendants who were victims of entrapment, it’s important to emphasize the evidentiary requirement.

A “preponderance of evidence” isn’t just a fancy term for “a lot” — it actually has a specific legal meaning. The defendant must be able to prove that the entrapment was more likely to have occurred than not, meaning the chance that entrapment occurred is greater than 50%. This standard of proof, while relatively rigorous, falls short of proving that something occurred “beyond a reasonable doubt,” which is the standard applicable to prosecutors.

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As we noted a moment ago, there is one exception where entrapment is not a valid legal defense. Under N.J.S.A. § 2C:2-12(c), the entrapment defense may not be raised in cases where both (1) “causing or threatening bodily injury is an element of the offense [which is being] charged,” and (2) “the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment.”

Stated another way, the entrapment defense won’t work if the defendant is being prosecuted for injuring (or threatened to injure) somebody, and the defendant is being prosecuted for injuring (or threatening to injury) somebody other than the officer. Depending on how serious the injury is, the defendant could also face enhanced penalties. For instance, causing bodily injury will result in simple assault charges, while causing serious bodily injury will result in aggravated assault charges.

If you’ve been charged with a crime and think that you were a victim of entrapment or other forms of police misconduct, the officer’s actions should be investigated. The attorneys at the Law Offices of John J. Zarych are ready to defend your liberties, fight the charges against you, and hold law enforcement accountable for abuse of power. To discuss your experience in a free, completely confidential legal consultation, call us right away at (609) 616-4956.