Capture is a positive legal defense against a crime in Georgia, meaning it’s built right into the state code. Imprisonment occurs when an officer or government official persuades a person to commit a crime that he or she would not otherwise have committed. A trap has three elements: First, the idea of the crime must originate with the officer. Second, the crime must be committed by “inadmissible” conviction. Third, the accused must not be predisposed to commit the crime.
The law is quite lengthy, but a relevant part states: “A person is not guilty of an offense if his conduct by imprisonment is prompted or requested by a government official or employee, or an agent of both, to obtain evidence for prosecution of the person for committing the crime. Imprisonment is when the idea and intent of committing the crime originates with a government official or employee, or an agent of both, and he has caused the accused by improper persuasion, incitement or fraudulent means to do what the accused would have done committed nothing but for the conduct of such an officer.” OCGA 16-3-25.
The challenge of a trap defense
The defense by inclusion is difficult to enforce because the accused must show that he was disinclined to commit the crime. And the fact that someone committed a crime may mean they were predisposed to it. For example, an inclusion defense would fail if a drug dealer were persuaded to sell drugs to an officer when he had no intention of selling drugs. Since he is a drug dealer, he would normally be inclined to commit the crime, regardless of whether the crime is the officer’s brainchild.
Alternatively, a good case of entrapment can occur when an undercover cop convinces a person to sell him drugs who has never sold drugs before. For example, an undercover officer tells a person that if the person doesn’t get him the drugs, he’s going through withdrawal symptoms and could die. In this example, the three elements would likely be met: the suspect did not come up with the idea of the crime, the officer may have used “inappropriate” persuasion, and the suspect was disinclined to commit such a crime.
burden of proof
The person seeking an entrapment defense must first present a basic (or prima facie) case for entrapment. After prima facie evidence is established, the state must prove that the defendant was not pinched beyond a reasonable doubt. The defendant bears the initial burden, but then the burden shifts to the state.
Interestingly, a defendant can plead both the plea of imprisonment and that he did not commit the act that led to the crime. For example, the defendant argues that he never sold drugs to a police officer, but that if the jury finds he did so, he did so only by confinement.
If you think you could defend yourself against a crime, contact our office today for a free consultation and case analysis!
