The Defense of Entrapment in Indiana

Entrapment is an affirmative (or complete) defense to criminal charges.  While the state must always prove its case beyond a reasonable doubt, the evidentiary burden is on the defense to prove by a preponderance of the evidence that he/she was entrapped by the government into committing a criminal act.

In Indiana, the defense of entrapment is defined by IC. 35-41-3-9.  It reads:

  • It is a defense that:
    1. The prohibited conduct of the person was the product of a law enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and
    2. The person was not predisposed to commit the offense.
  • Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.

The first part of the entrapment statute spells out the two elements of a valid entrapment defense.  Namely, did the government induce the crime?  And second, even if the government did induce the crime, did the defendant lack a predisposition to commit the crime?  For entrapment to be successful as a defense, both government inducement and a lack of criminal predisposition must be present.  In other words, even if government inducement to commit a crime is shown, a finding of predisposition to commit the criminal act will prove fatal to an entrapment defense.  The question of predisposition focuses on whether the defendant “was an unwary innocent, or, instead, an unwary criminal who readily availed himself of the opportunity to perpetrate the crime.”  Matthews v. United States 485 U.S. 58, 63 (1988).

The second part of the entrapment statute focuses on “opportunity.” It is important to understand that being provided with an opportunity to commit a crime does not automatically mean that an individual was entrapped.  An opportunity is considered different from entrapment and involves only the temptation to violate the law, not being forced to do so.  Routinely, police officers work undercover to arrest and charge individuals criminally.  Undercover operations are viewed as the police creating “opportunities” for individuals to be involved in criminal behavior.  However, entrapment only occurs if the police urge, harass, or overly encourage an individual to commit a crime when he or she would not otherwise do so.

For example, law enforcement officers could set up a sting operation for a target individual to commit a bank robbery.  This might involve an undercover officer pretending to be a criminal and alerting the target about a large shipment of money that is incoming to the bank on a certain day or time.  If the target then tries to complete the robbery on their own based on the information he/she received from the undercover officer, no entrapment has occurred.   Clearly, the target was predisposed to commit the crime and there were no threats or coercion displayed to the target from the police.

However, if the undercover officer tells the target individual about the large shipment of money arriving at the bank, and the undercover officer then threatens to harm the target’s family if the target doesn’t commit the bank robbery, then entrapment will be a valid defense to a robbery charge.  Similarly, if the undercover officer continually harasses the target to commit the bank robbery after the target consistently declines, the entrapment defense will likely succeed in a robbery charge.  In both of these scenarios, the target was not predisposed to commit the robbery, and only participated in the robbery after enduring either persuasion or harassment from the undercover officer.

Are you or someone you love facing criminal charges in which you think entrapment may be a viable defense?  We are happy to help.  Contact the experienced criminal attorneys at Banks and Brower anytime at (317) 870-0019 or by emailing at