In December, we wrote an article regarding the entrapment defense as it relates specifically to sex crimes under Michigan law. In this article, I will discuss the general differences of entrapment under Michigan law compared to federal law as it relates to all crimes.
In general, the federal courts use what is called a “subjective test” to determine if an entrapment defense applies. This test is considerably different than the one applied by Michigan state courts, which implements the “objective test.” The difference between the objective test and the subjective test is whether or not the accused was predisposed to commit the crime. This means the federal court will inquire into a particular defendant’s predisposition to commit the crime in question.
The federal court applies a two-prong test for determining when a person has been entrapped: (1) government inducement of the crime, and (2) a lack of predisposition on the part of the defendant to engage in the crime. Under the first prong, the police can undertake clandestine operations to detect and expose consensual crimes (for example, a female officer posing as a prostitute on the side of the road). Under the second prong, the person’s predisposition is under review. If the evidence establishes that the defendant was ready and willing to commit the offense at any favorable opportunity, the defendant is deemed “predisposed” and has not been entrapped. On the other hand, if the defendant was not predisposed but was lured into committing the crime by agents of the government, the defendant has been entrapped.
The accused’s state of mind is a factor to be considered
In contrast, Michigan state courts apply an objective test. The objective test makes it easier for defense to establish entrapment because it is the conduct of the police that is focused on, such as investigative techniques and the procedures used to gather evidence, rather than the defendant’s predisposition to commit the crime. In the objective approach, the accused’s state of mind is a factor to be considered, but not with the weight given to it by the subjective approach.
In conclusion, it is more difficult to establish entrapment in the federal courts than it is in Michigan state courts. Not only will you have to show the police acted egregiously, you will also have to show that the defendant is not predisposed to commit the crime in question. However, in either case, entrapment is still difficult to prove. This is why you need to consult with a skilled and experienced criminal defense attorney that knows how to effectively present an entrapment defense at an evidentiary hearing or trial. A judge may suppress the evidence used against you, which could result in a dismissal of charges. Conversely, the judge may allow you present an entrapment defense if your case proceeds to jury trial.
At The Kronzek Firm PLC, our criminal defense team is well-versed in the areas of entrapment under both the state of Michigan standards and the standards applied in the federal courts. As a criminal defense attorney, and as a former Oakland County Assistant Prosecuting Attorney, I have litigated a wide variety of issues related to constitutional violations by police officers. These issues can be extremely important to our clients. If you think your rights have been violated due to entrapment or some other issue and want to retain an attorney to help you with your case, I would be happy to discuss the matter with you. Our firm represents clients in all Michigan courts as well as the Western District of Michigan and the Eastern District of Michigan.