T.P.I. — CRIM. 40.04

DEFENSE:  ENTRAPMENT

            It is a defense to this prosecution that the defendant was the victim of entrapment as to the offense charged.¹

            As used in the law, "entrapment" means that law enforcement officials, acting either directly or through an agent, induced or persuaded an otherwise unwilling person to commit an unlawful act.  On the other hand, where a person is predisposed to commit an offense, that is, ready and willing to violate the law, the fact that state officials or their agents merely afforded opportunities for him or her to do so does not constitute entrapment.

            Inducement by law enforcement officials may take many forms including persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship.  A solicitation, request or approach by law enforcement officials to engage in criminal activity, standing alone is not an inducement.  Law enforcement officials are not precluded from utilizing artifice, stealth and stratagem, such as the use of decoys and undercover agents, in order to apprehend persons engaged in criminal activities, provided that they merely afford opportunities or facilities for the commission of the offense(s) by one predisposed or ready to commit it.  [They may properly make use of undercover operations, in which they assume false names and false appearances.  They may properly assume the roles of members of criminal organizations.  They may properly offer to give to the defendant the money which is involved in the commission of the crime itself.  And they may properly instigate the offer of money to the defendant.]

            If you should find from the evidence in this case that before the alleged offense(s) occurred, state officers or their agents did no more than offer the defendant the opportunity to engage in criminal conduct, there is no entrapment.  On the other hand, if you find evidence in this case that the defendant was induced to commit the offense(s) charged, you must go on to consider whether or not the defendant was predisposed to commit the offense(s); that is, whether [he] [she] was ready and willing to commit crimes such as are alleged in the indictment, whenever an opportunity was afforded.

            In determining whether the defendant had a predisposition to commit the crimes charged, you need not find that [he] [she] was involved in any prior offenses or criminal conduct.  Predisposition may be shown in many ways.  The defendant’s predisposition or willingness to commit the crimes charged may be shown by evidence of [his] [her] prior conduct of a similar character or by evidence, direct or circumstantial, that [he] [she] was ready and willing to engage in the illegal conduct in question.  It may be shown by evidence of the defendant’s reputation or character.  In evaluating this matter of predisposition, you should look to the totality of the circumstances involved in the alleged offense(s) with which the defendant is charged.

            [If evidence of prior conduct of the defendant which may be criminal is introduced to show [his] [her] predisposition or willingness to commit the alleged offense, you may consider such evidence only in connection with your determination of the defendant’s predisposition or readiness to commit that offense.  It is not evidence that [he] [she] actually committed the crime(s) for which [he] [she] is now on trial.  Moreover, the fact, if it is a fact, that the defendant may have committed prior offenses of a similar character does not by itself require you to conclude that [he] [she] had the predisposition or readiness to commit the offenses with which [he] [she] is now charged.]

            In summary then, if you find no evidence that the state induced the defendant to commit the crime(s) with which [he] [she] is charged here, there can be no entrapment.  On the other hand, if you find some evidence that the defendant was induced to commit the offense(s) with which [he] [she] is charged, you must then go on to consider if the defendant was predisposed to commit such (an) offense(s).  If you find beyond a reasonable doubt that the defendant was predisposed to commit such (an) offense(s), then you should find that the defendant was not a victim of entrapment.  If the evidence in the case leaves you with a reasonable doubt whether the defendant was predisposed to commit the offense(s), then you must find [him] [her] not guilty.

Here is the key point.If there is no inducement, there can be no entrapment.