Abstract

ENTRAPMENT AND DUE PROCESS: MOVING TOWARD A DUAL SYSTEM OF DEFENSES

KENNETH M. LORD

Copyright 1998 Florida State University Law Review

The principal purpose of this Article is to present a detailed description of the evolution and scope of the predisposition-based subjective entrapment defense, the objective entrapment defense, and the outrageous government conduct defense, including a critical analysis of their strengths and weaknesses. Based upon this analysis, this Article concludes that the best means for balancing the rights of an induced defendant against the government's need to detect ongoing criminal activity is a dual system of defenses in which the underinclusive subjective approach to entrapment is augmented by one or both of the objective defenses. Part II is a description and critique of the subjective entrapment defense, including a detailed summary of the evidentiary standards surrounding a court's inquiry into a defendant's predisposition to commit the crime. Part III is an analogous treatment of the objective entrapment defense. Part IV presents a description and analysis of two hybrid forms of the entrapment defense, the discrete and composite hybrid approaches. Courts using these approaches, which have been adopted in only a few states, incorporate both subjective and objective prongs into their entrapment analyses. Part V is an examination and critique of the outrageous government conduct defense, including its development, constitutional foundations, and practical applications. Incorporated into this discussion is an analysis of the circumstances in which courts are likely to conclude that the government's conduct has been "outrageous."

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