Jacobson v. US
- It was reported that D had ordered magazines depicting nude minors through the mail, prior to laws prohibiting this. He claimed that he was expecting magazines with young men 18 or older.
- Over a period of 3 years government agents, pretending to be organizations promoting freedom of expression, contacted him and encouraged the purchase of child porn.
- Eventually he gave in and purchased a magazine; when it arrive he was arrested
SC: Majority believed the government created the predisposition over a long period of time.
- Fantasies do not show a predisposition to actually break the law. Predisposition to break the law must be present prior to government contact.
- Descent argues (subjective) that its not when the government contacts the defendant but when the defendant commits the crime determines the predisposition. It’s the juries’ job to determine if a predisposition exists or whether entrapment occurred.
2. Objective Test (focuses on the governments conduct)
Is the government conduct likely to induce someone to commit a crime he/she would not otherwise do so?
- Predisposition not an issue
- Based solely on government’s conduct
- Court must determine if police conduct rises to the level of entrapment
Majority believe that entrapment should be read into a criminal statute.
Minority believes that if that is what the legislature intended, it would have written it into the statute.
3. Outrageous Conduct
- US Supreme Court recognizes the defense, however it has never found a set of circumstances that fits this defense.
- While we may someday be presented with a situation in which the conduct of law enforcement agents is so outrages that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction . . . the instant case is distinctly not of that breed. US v. Russell