Causation and Intention in the Entrapment Defense

• NCJ Number: 80437
• Journal: UCLA Law Review Volume: 28 Issue: 4 Dated: (April 1981) Pages: 859-905
• Author(s): C R Perelli-Minetti
• Date Published: 1981
• Length: 47 pages
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

Tests commonly used to evaluate a defendant's claim of entrapment are critiqued.

Abstract

Sorrells v. United States, the first U.S. Supreme Court decision to recognize entrapment as a defense, presented two approaches around which most of the debate is still centered. The majority view has come to be called the 'subjective' test, because it focuses on the accused's predisposition to commit the crime charged. The concurring view, which is known as the 'hypothetical-person' test, examines the methods used by the police to determine whether they would have induced a hypothetically nondisposed person to commit the crime charged. Both of these tests can produce unjust results by failing to consider the crucial issue of the defendant's intention. The subjective test fails to examine intention by confusing it with predisposition; the hypothetical-person test ignores intention by focusing exclusively on a standard for police conduct. The theory of 'causing voluntary actions' provides an alternative causal principle which is appropriate in entrapment situations. This theory, developed by Joel Feinberg, maintains that a caused voluntary action is one in which the acts of another form a major part of the explanation of that action. Under this theory, the relevant entrapment questions involve the identification of the defendant's acts of volition and a determination of how the police actions interfered in the defendant's volitional process. Until it recently adopted the hypothetical-person test, the California Supreme Court used a third test of entrapment, called the 'origin-of-intent' test. This test seeks to determine whether the intent to commit the crime charged originated with the police officer or with the accused. This test is compatible with the theory of causing voluntary actions and is to be preferred to the subjective and hypothetical-person tests. A total of 251 footnotes are listed.