The affirmative entrapment defense consists of two elements:
(1) Government inducement
(2) Lack of predisposition to commit the crime.
A defendant alleging entrapment must show he was induced, tricked, or incited to commit a crime, which he would not otherwise have committed.
The facts of the case are important as it relates to an entrapment defense. In the case of State v. Brown, 362 S.C. 258, 607 S.E.2d 93 (S.C. App. 2004) the Court of Appeals of South Carolina stated there was government inducement in which Brown was charged with distribution of drugs. Specifically, law enforcement instigated the drug transaction through a confidential informant who had an incentive to set up a drug deal.
The Court also found Brown had a lack of predisposition to commit a drug deal. Brown was a retired Army first sergeant, gainfully employed, declined to conduct the drug deal at his business, the drugs were not readily accessible, timing was not ideal, and he did not have a significant amount of cash. Further, there was no evidence that Brown had engaged in any other drug activity.
“When the criminal design originates, not with the accused, but is conceived in the mind of the government officers, and the accused is by persuasion, deceitful representation, or inducement lured into the commission of a criminal act, the government is estopped by sound public policy from prosecution therefor.”