N.J. Model Criminal Jury Charge, N.J.S.A. 2C:2-12

Approved 1/12/82

ENTRAPMENT

(N.J.S.A. 2C:2-12)

The defendant claims that he/she was en trapped. That means that he/she does not

necessarily deny that he/she violated the criminal laws. 1 Therefore, if you find beyond a

reasonable doubt that he/she di d commit the crime(s) charged, you should then consider his/her

claim that the law enforcement officials (and/or their agent or informant) caused him/her to

commit the offense by methods which were contrary to legal standards.

The law authorizes law enforcement officers to use stealth and strategy, decoys, traps and

deception as a tactic to outwit and catch those engaged in criminal enterprise. But the law does

not authorize a law enforcement officer whether by himself/herself or through an agent or

informant, or together with ot hers to trap another person by inducing or en couraging him/her to

commit an offense and then as a direct result of that inducement or encouragement, cause that

other person to commit an offense.

Therefore, to establish entrapment as a defense, the burden is on the defendant to prove

by a preponderance of evidence that a law enfor cement officer (either by (himself/herself) or

through an agent or informant, or together with others) did induce or enc ourage the defendant to

commit the crime(s), and as a direct result thereof, (he/she) did cause the defendant to commit

the offense(s) charged.

The defendant must prove by a preponderance of evidence that he/she was induced or

encouraged to commit the offense by the law enforcement officers (the officer's agent or

informant, or others) (select a ppropriate) or knowing false repres entations which by their very

nature created a substantial risk that the cr ime would be committed by an average person who

was NOT otherwise ready to commit it.

In addition, the defendant must prove that th e police conduct in fact caused him/her to

commit the crime; in other words, that the crime was a direct result of the police action.

(Where the State introduces evidence of the defendant's predisposition to commit the

crime, the following should be added.)

The State has introduced evidence to demonstr ate, if believed, that the defendant was not

1 See State v. Branam, 161 N.J.Super. 53 (1978 aff'd 79 N.J. 301 (1979).

ENTRAPMENT

(N.J.S.A. 2C:2-12)

an innocent person who would not have committed the offense were it not for the inducement of

the law enforcement officer. That in fact he /she was predisposed to commit the crime.

Therefore, for this purpose, the Court has permitted the State to introduce for your consideration

evidence of (select appropriate) the defendant's previous convictions of crime; his/her reputation

for criminal activities; evidence that he/she was unusually suscepti ble to inducement, or that an

ordinary person would not have succumbed to th e type of inducement or opportunity to commit

the offense to which the defendant succumbed.

2

Whether such evidence along with other facts and surrounding circumstances, shows a

predisposition on the part of the defendant to commit the offense is for you to determine.

If you find that the defendant had been predisposed to commit the offense even without

the law enforcement officer's participation or inducement, then the defendant's participation was

not the direct result of the officer's activity, an d the defense of entrapme nt has not been proven

and it is unavailable to him/her.

3

Entrapment is an affirmative defense. This means that the defendant has the burden of

proving it by , as I have said before, a preponder ance of evidence. That means, by the greater

weight of believable evidence. A preponderance means evidence that is more probable, more

persuasive, or of a greater probative value. By that I mean that the evidence introduced on

behalf of the defendant must weigh more heavily in your minds and be more convincing than

that introduced on behalf of the State. It does not mean that the defendant must have more

witnesses than the State. The bu rden of proof is sustained by th e quality of the evidence rather

than the quantity.

If you find that the State has failed to prove beyond a reasonable doubt any element of

the offense, or the defendant's participation in the offense, you must find the defendant not guilty

and you need not consider the evidence as to the defendant's claim of entrapment.

If you find that the State has proven beyond a reasonable doubt each essential element of

2 See State v. Donald Rochholt, 96 N.J. 570, 476 A. 2d 1236 (1984).

3 When official conduct inducing an offense is so egregious as to impugn the integrity of a court that permits

a conviction, predisposition of a defendant becomes irrelevant, and there may be entrapment as a matter of law.

State v. Molnar, 81 N.J. 476.

ENTRAPMENT

(N.J.S.A. 2C:2-12)

the offense, you must then consider the evidence as to the claim of entrapment.

If you find that the defendant has establishe d the defense by a preponderance of evidence,

you must find the defendant not guilty. On the ot her hand, if you find that the defendant has not

established the defense by a preponderance of evidence, you must find the defendant guilty.4

4 The defense of entrapment is unavailable when caus ing or threatening bodily injury is an element of the

offense charged and the prosecution is based on conduct causing or threatening such injury to a person other than the

person perpetrating the entrapment. N.J.S.A. 2C:2-12C.