Clearing your name is our #1 priority.

I Believe I Am the Victim of Entrapment. What Should I Do?

Posted on November 18, 2022 by JACK MKHITARIAN

The entrapment defense in New Mexico can only be used in certain circumstances. But entrapment is a defense, so in using entrapment, you are admitting to the crime. Therefore, you will need a skilled, experienced, and knowledgeable criminal defense lawyer to protect you.

Having a defense lawyer who understands how and when to use the entrapment defense can give you the best chance to have your case dismissed or avoid a conviction.

Having a lawyer with experience in criminal cases can mean the difference between getting a prison sentence and walking away from criminal charges. At the New Mexico Criminal Law Offices, we have over two decades of criminal defense experience and a history of success handling a variety of criminal matters. We know that every case is different. That’s why we focus on the best defense for your case and don’t apply a one-size-fits-all approach. Contact us today to discuss your case.

What Is Entrapment?

New Mexico law recognizes entrapment as a complete defense to a criminal accusation. Entrapment is an affirmative defense. This means that, if successful, this defense will negate criminal and civil culpability even if the prosecutor can prove that you committed a crime. In other words, it is a legal excuse for committing certain crimes.

But what exactly is entrapment? Essentially, entrapment is when a government agent induces you and presents you with an opportunity to commit a crime. In many cases, the government agent does more than just present you with an opportunity—they cajole and pressure citizens into committing crimes just to turn around and arrest them for it. In New Mexico, this is called unfair inducement, and it is illegal police conduct.

Under New Mexico law, there are two theories of entrapment: objective and subjective. Successfully arguing either or both theories of entrapment can win you an acquittal.

Entrapment by Unfair Inducement: Subjective Entrapment

In New Mexico, the judge must give the entrapment jury instruction if you provided enough evidence that you were not predisposed to commit the crime before government agents induced you to do so. If the judge heard enough of this evidence at trial, and if you request it—the judge should provide the jury with the entrapment instruction.

This jury instruction focuses on your subjective intent. An example is the easiest way to illustrate this concept. Suppose that Joe never committed a crime in his life. Then suppose that Bill, a government agent, spent time trying to get Joe to buy drugs. Bill presents the idea, provides the opportunity, and continues to pressure Joe to buy the drugs. When Joe succumbs to this pressure, Bill arrests him.

New Mexico law does not allow government agents to suggest, induce, and pressure an innocent person to commit a crime and then arrest them for it. However, if Joe had a drug history and was therefore predisposed to buy drugs, this subjective entrapment theory would not apply. However, objective entrapment might be an option.

Objective Entrapment

Unlike subjective entrapment, objective entrapment has nothing to do with your criminal intent or predisposition to commit a crime. Instead, this theory focuses on government agents’ conduct during their investigation. The judge should instruct on objective entrapment at the defendant’s request when:

The parties present evidence of a circular transaction, meaning law enforcement induced you to commit a crime and then arrested you for it;
The government’s agents created a substantial risk that an ordinary person would have committed the crime; or
The agent’s conduct exceeded the bounds of a proper investigation.

Therefore, under this theory, a person who is predisposed to commit a crime can still argue objective entrapment. This theory could succeed if evidence suggests the government’s agents unfairly induced the person to commit a crime.

To overcome this argument, the prosecutor has the burden of proving beyond a reasonable doubt that the agent’s conduct did not exceed permissible law enforcement conduct.

How Do You Prove Entrapment?

Unfortunately, proving entrapment is more complex than it sounds because the entrapment defense is highly fact-specific. You’ll need an attorney who knows and understands the procedural and substantive law in New Mexico. Ideally, your lawyer should also have the resources to conduct a complete and thorough investigation on your behalf if you want to be successful.

Notice of Entrapment Defense

New Mexico’s Rules of Criminal Procedure require defendants to file a notice with the prosecutor of their intention to argue entrapment. You can’t simply surprise the prosecutor with your defense at trial. The rules in New Mexico permit the prosecution to investigate your entrapment claims.

Notice of Witnesses

In particular, the law states that you must inform the prosecutor in writing who you will call as witnesses to prove your entrapment defense. The prosecutor then has to give your attorney written notice of the witnesses they plan to call to rebut your entrapment claims. Both sides have a continuing duty to disclose additional evidence to one another until the trial. Failing to declare your intent to use the entrapment defense or not following the rules means the judge can prevent you from arguing entrapment.

There are relatively rare instances where your entrapment defense is so strong that the prosecutor will dismiss the case. However, far more often, you will need a strong lawyer to present your defense at trial.

At trial, you will have to present evidence of entrapment to win. However, the prosecution has to prove that no entrapment occurred, and they must prove it beyond a reasonable doubt to convict you. If the prosecution fails to prove that the police did not unfairly induce you, you should be acquitted.

What to Do If You Are a Victim of Entrapment?

You must contact a skilled criminal defense lawyer immediately if you believe you are a victim of entrapment. Your lawyer can start investigating your defense right away.

You have a better chance of finding witnesses and preserving evidence when you talk with a lawyer as soon as possible. Waiting too long to speak to a lawyer could jeopardize your chances of success.