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Entrapment is an affirmative defense that effectively says the only reason you committed a crime is because the government made you commit it.  This is a defense that takes very little to establish, but also takes very little to defeat.  If the government can show that you were “predisposed” to the crime, the Entrapment defense is no longer available under the theory that you would have committed such crime anyways had the government not injected itself.  Entrapment can be a risky defense to invoke, because it generally requires that you admit to committing the crime, which therefore requires putting all of your eggs in the basket of Entrapment.


In Georgia, Entrapment is defined under O.C.G.A. § 16-3-25:  “A person is not guilty of a crime if, by entrapment, his conduct is induced or solicited by a government officer or employee, or agent of either, for the purpose of obtaining evidence to be used in prosecuting the person for commission of the crime. Entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee, or with an agent of either, and he, by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.”

The courts have broken this statute into a three-part test:

  1. The idea for the commission of the crime must originate with the state agent
  2. The crime must be induced by the agent’s undue persuasion, incitement, or deceit; and 
  3. The defendant must not be predisposed to commit the crime.”

The critical part of the test is the third element: that a defendant must not be “predisposed” to commit the crime.  

The good news is that everybody is by default considered not to be predisposed to criminal behavior, and thus this defense should be commonly readily available.  The bad news, though, is that it is not difficult for the state to prove predisposition if it exists.  

This is because a showing of predisposition doesn’t require a criminal conviction, but can be established by the facts of the case- and a skilled prosecutor can often make a case for this that juries will buy.  As demonstrated in the case below, juries in trial courts have found a defendant to be predisposed to pedophilia simply by continuing to engage with a pimp after she mentioned that she had underage prostitutes available, despite the defendant ultimately saying he was uncomfortable with the concept and backing out (though it was reversed on appeal).

It is worth noting that generally, contesting that you committed the crime waives the defense of Entrapment, as it requires that a crime was actually committed yet should be justified.

Case Law

In Cosmo v State, the Defendant used Craigslist to solicit prostitutes.  An undercover agent involved in a sting operation asserted that she offered “unique services”.  After the Defendant inquired further, the agent said that she had two underage daughters that she offered as a “kinky” service, in addition to herself.  The Defendant continued to engage with the woman, but said that he was uncomfortable with “the underage thing” and was only interested in her.  The government agent continued to call him, and insinuated that she would not meet with him unless he engaged with her “daughters”, saying things such as “I just, are you that, are you that conflicted about everything? It’s like I said, I just detect so much indecision, and if you’re, if you’re that indecisive, then, I don’t know, maybe we should make different arrangements.”

The jury in the trial court declined to honor the defense of Entrapment because of the way that the Defense Attorney presented it, and convicted him of that charged crime.  When the appeals court reviewed the case, however, they determined that the Defendant showed no indication of predisposition to pedophilia.  The Defendant even said he was uncomfortable with it, and only engaged because of the pressure that the government agent was pushing on him.  The court then reversed the conviction on this count, and ordered a new trial on all other counts.


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