§702-237  Entrapment.  (1)  In any
prosecution, it is an affirmative defense that the defendant engaged in the
prohibited conduct or caused the prohibited result because the defendant was
induced or encouraged to do so by a law enforcement officer, or by a person
acting in cooperation with a law enforcement officer, who, for the purpose of
obtaining evidence of the commission of an offense, either:



(a) Knowingly made false representations designed to
induce the belief that such conduct or result was not prohibited; or



(b) Employed methods of persuasion or inducement
which created a substantial risk that the offense would be committed by persons
other than those who are ready to commit it.



(2)  The defense afforded by this section is
unavailable when causing 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. [L
1972, c 9, pt of §1; gen ch 1993]



 



COMMENTARY ON §702-237



 



  The rationale for providing a defense based on entrapment
does not reside in the fact that entrapped defendants are less culpable or
dangerous than those who formulate their intent without outside inducement.  If
that were the case, a defense based on similar inducement and encouragement by
private citizens would have to be recognized.  The real basis for the defense
of entrapment is a purpose to deter improper conduct on the part of law
enforcement officials.  The harm done by increasing the risk of penal conduct
by otherwise innocent persons, the improper utilization of police resources,
the suspicion that entrapment tactics are the result of personal malice, and
injury to the stature of law enforcement institutions, all contribute to condemn
entrapment.  Providing a defense to conduct which would otherwise be a basis
for penal liability because of improper tactics of law enforcement officials is
an extreme measure, but no other, more effective, method presents itself.



  Consistent with the reason for the defense, the Code's
formulation of the standard of conduct regarded as sufficient to establish
entrapment focuses not on the predisposition of the defendant to engage in the
prohibited conduct, but rather on the conduct of the law enforcement official
(or person acting in cooperation with the official).  This distinction is of
critical importance in analyzing subsection (1)(b).  Regardless of the
defendant's past record or present predisposition to engage in a certain type
of penal conduct, the defendant will be afforded a defense if the defendant was
induced or encouraged to engage in such conduct by methods which create a
substantial risk of persuading a person who was not ready to commit the
offense.  For example, a police informer makes extraordinary appeals of
friendship to the defendant, a long-time narcotics peddler, and thereby moves
the defendant to sell the informer narcotics.  Notwithstanding the defendant's
predisposition to peddle narcotics, the defense is available.  Conversely, merely
because a defendant was not predisposed to committing the offense, prior to the
inducement by an official, does not automatically afford the defendant the
defense of entrapment.  Thus, for example, an undercover narcotics agent offers
to buy, at a handsome price, all the narcotics which the defendant can obtain;
the defendant, a person without any prior thought of peddling narcotics, on the
basis of such inducement obtains narcotics and sells them to the undercover
agent; the defense of entrapment should not be available.  The offer to buy
narcotics is not a method which creates a substantial risk that the offense
would be committed by persons other than those ready to commit it.



  Subsection (3) limits the defense of entrapment so that it
does not apply to offenses causing or threatening bodily harm to a person other
than the entrapper.  Although "[n]o reported entrapment case has been
found involving a criminal act in which great physical damage has taken
place," the limitation seems wise.[1]  Here, there are other factors which
discourage such conduct by law enforcement officials and persons acting in
cooperation with them.  As the Model Penal Code commentary has pointed out, in
cases of crimes causing or threatening bodily injury to persons other than the
entrapper, much of the reason for the defense fails.  Public opinion would, in
all probability, demand the punishment of the conniving or cooperating
officers.  The injured persons would have motivation to seek civil redress.  It
will not seem generally unfair to punish someone who has caused or threatened
bodily injury to another although he has been induced to his action by law
enforcement officials.  A person who can be persuaded to cause such injury
presents a danger that the public cannot safely disregard.[2]



Except for the apparent faith in the efficacy of public
opinion, these factors seem relevant and persuasive.



  Out of an abundance of caution it should be noted that the
phrase "person acting in cooperation with a law enforcement officer"
is intended to cover both public officials and private citizens.



  The Code makes entrapment an affirmative defense.  It is not
unfair to require a defendant, who desires to escape from penal liability not
on the basis of the defendant's own lack of culpability but rather on the basis
of the additional culpability of law enforcement officials with respect to
their official conduct, to bear the burden of proving by a preponderance of the
evidence the excusing condition.



  In Hawaii, the standard for entrapment has heretofore focused
on whether the defendant had conceived the intent or "criminal design or
purpose" to undertake the prohibited conduct or whether the defendant had
been "lured" into the conduct by a law enforcement official.[3]  The
standard did not focus, as the Code does, on the quality of the tactics used by
the official.  Moreover, unlike the Code provision, previous Hawaii law did not
require the defendant to carry the burden of proof on the defense of
entrapment; formerly the defendant prevailed if the evidence raised a
reasonable doubt on that point.



 



Case Notes



 



  Instruction on entrapment and burden of proof.  58 H. 234,
566 P.2d 1370.



  Provisions of this section and §701-115, requiring defendant
to prove entrapment by preponderance of the evidence, do not violate due
process.  58 H. 234, 566 P.2d 1370.



  Unless evidence is undisputed and clear, entrapment is a jury
question.  58 H. 234, 566 P.2d 1370.



  Defendant has burden of proof on entrapment; no violation of
due process.  58 H. 479, 572 P.2d 159.



  Jury finding of no entrapment upheld.  63 H. 536, 631 P.2d
181.



  No valid claim that police induced criminal actions.  67 H.
608, 699 P.2d 983.



  Use of drunk decoys constituted entrapment.  68 H. 635, 726
P.2d 266.



  "Reverse buy" police operation designed to detect
drug-related offense was not entrapment where officer merely provided defendant
an opportunity, as opposed to inducement, to commit charged offense; objective
test discussed.  73 H. 179, 830 P.2d 492.



  Instruction which tracked the language of subsection (1)(b),
plainly required defendant to prove by a preponderance of the evidence that
defendant was entrapped, that was a correct statement of the law; there was
substantial evidence to support jury's conclusion that defendant failed to
prove entrapment by a preponderance of the evidence.  77 H. 72, 881 P.2d 1218.



  Defendants did not prove entrapment under subsection (1)(b)
by preponderance of evidence as required by §701-115(2)(b); officer's conduct
merely provided defendants with opportunity to commit offense of promoting a
dangerous drug in the first degree.  82 H. 499 (App.), 923 P.2d 916.



  Where no evidence of any encouragement, persuasion, or
inducement on the part of undercover police officer vis-a-vis defendant or any
of defendant's principals, no basis for instructing jury on any kind of
entrapment defense.  92 H. 98 (App.), 987 P.2d 996.



 



__________



§702-237 Commentary:



 



1.  M.P.C., Tentative Draft No. 9, comments at 23 (1959).



 



2.  M.P.C., Tentative Draft No. 9, comments at 23-24 (1959).



 



3.  Territory v. Achuck, 31 Haw. 474 (1930).