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28 Fordham L. Rev. 399 (1959-1960)
The Defense of Entrapment and Related Problems in Criminal Prosecution

handle is hein.journals/flr28 and id is 419 raw text is: THE DEFENSE OF ENTRAPMENT AND RELATED PROBLEMS IN CRIMINAL PROSECUTION PAUL W. WILLIAMS* TBE defense of entrapment is one of man's earliest recorded pleas. The Bible tells us that Eve, when accused of eating the forbidden fruit, protested: The serpent beguiled me, and I did eat.1 Yet, strangely enough, entrapment was not clearly recognized as a valid defense in the federal courts until the 1932 case of Sorrells v. United States.' It is interesting to note that the English courts have never squarely upheld the defense of entrapment.3 Entrapment was rejected by the New York Supreme Court in a Civil * Member of the New York Bar. 1. Genesis 3:13. 2. 287 U.S. 435 (1932). Mr. Justice McReynolds dissented. The earliest reported case in the federal courts which considered the defense of entrapment was United States v. Whittier, 28 Fed. Cas. 591, 594 (No. 16,688) (C.C.E.D. Mo. 1878), in which the concurring opinion approved the use of decoy letters and stated: No court should, even to aid in de- tecting a supposed offender, lend its countenance to a violation of positive law, or to con- trivances for inducing a person to commit a crime. Although a violation of law by one person in order to detect an offender will not excuse the latter, or be available to him as a defense, yet resort to unlawful means is not to be encouraged. When the guilty intent to commit has been formed, any one may furnish opportunities, or even lend assistance, to the criminal, with the commendable purpose of exposing and punishing him. In United States v. De Bare, 25 Fed. Cas. 796 (No. 14,935) (EfD. Wis. 1875), a post- master attempted to trap a thief. Having recovered stolen stamps, he forwarded them, on the instructions of his superiors, to the defendant who was expecting them. The defendant was then arrested for receiving stolen property. The court held that there could be no con- viction even though a criminal intent existed since after recovery the stamps were no longer stolen property. Woo Wai v. United States, 223 Fed. 412 (6th Cir. 1915), and United States v. Healy, 202 Fed. 349 (D. Mont. 1913), are the first reported cases in which a federal court acquitted a defendant because he was entrapped. See also Note, 41 Yale LJ. 1249 (1932). In the Healy case the court declared: Decoys are permissible to entrap criminals, but not to create them; to present opportunity to those having intent to or willing to commit crime, but not to ensnare the law-abiding in unconscious offending. Where a statute, as here, makes an act a crime regardless of the actor's intent or knowledge, ignorance of fact is no excuse if the act be done voluntarily; but when done upon solicitation by the government's instrument to that end ignorance of fact stamps the act as involuntary, and excuses, or at least estops the government from a conviction. In the former case the actor is bound to know the facts, and acts at his peril. In the latter case he is relieved of the obligation by the government's invitation, which is of the nature of fraudulent conceal- ment and deceit and, if not consent, yet doth work an estoppel. Though the seller has violated the statute, he was the passive instrument of the government, and his is a blame- less wrong for which he cannot be justly convicted. 202 Fed. at 350. 3. Williams, Criminal Law § 195, at 620 (1935). See also Rex v. Martin, Russ. & Ry. 196, 168 Eng. Rep. 757 (K.B. 1811); Rex v. Holden, Russ. & Ry. 154 (Assiz. 1809).

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