Criminal Law FLASHPOINTS July 2022

Matthew Chivari, Chivari P.C., Chicago
312-975-5732 | E-mail Matthew Chivari

Revisiting Entrapment as a Defense

Entrapment is one of several defenses, along with consent and abandonment/withdrawal, that a defendant may present against criminal charges under a general theory that a crime did not occur. Stated most simply, under this theory a defendant argues that law enforcement induced him or her to commit the alleged crime, and no crime would have occurred but for the government’s inducement, for which reason he or she should not be held responsible. The U.S. Supreme Court held that “Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.” Jacobson v. United States, 503 U.S. 540, 118 L.Ed.2d 174, 112 S.Ct. 1535, 1536 (1992).

Mathews v. United States, 485 U.S. 58, 99 L.Ed.2d 54, 108 S.Ct. 883, 886 (1988), established that a valid entrapment defense is comprised of two elements: (1) government inducement of the alleged crime; and (2) the defendant’s lack of predisposition to engage in the criminal conduct alleged. To employ this defense, a defendant must first demonstrate inducement. According to the Supreme Court, inducement requires something more than mere solicitation by the government to commit a crime. Sorrells v. United States, 287 U.S. 435, 77 L.Ed. 413, 53 S.Ct. 210, 216 (1932). Similarly, a government agent’s use of artifice, stratagem, pretense, or deceit does not establish inducement. 53 S.Ct. at 212. Minimally, a defendant must show that persuasion or mild coercion occurred. United States v. Nations, 764 F.2d 1073, 1080 (5th Cir. 1985). See also United States v. Kelly, 748 F.2d 691, 698 (D.C.Cir. 1984) (inducement is shown only if government’s actions were such that “a law-abiding citizen’s will to obey the law could have been overborne”).

Once inducement has been shown, the defendant must successfully combat a finding of predisposition to prevail with a defense of entrapment. The issue of predisposition addresses whether the defendant “was an ‘unwary innocent’ or, instead, an ‘unwary criminal’ who readily availed himself of the opportunity to perpetrate the crime.” Mathews, supra, 108 S.Ct. at 886. This determination can lead to murky waters. First, predisposition is not equivalent to intent or mens rea — a person may have the required intent or mental state to commit the crime and still be entrapped. Nor does predisposition require the presence of any prior criminal history. Given the amorphous nature of this element, the determination of predisposition can confound even the ablest of minds in a courtroom. This is illustrated by the Illinois Supreme Court’s recent decision in People v. Lewis, 2022 IL 126705, which offers both lessons in the defense of entrapment and counsel to those who employ it.

Illinois v. Lewis

In Lewis, the defendant was charged with involuntary sexual servitude of a minor, traveling to meet a minor, and grooming. 2022 IL 126705 at ¶1. After asserting a defense of entrapment at trial, the defendant was convicted and sentenced to six years’ imprisonment. Id. The defendant appealed on the grounds of ineffective assistance of counsel, arguing that, in presenting the entrapment defense, defense counsel failed to (1) object to the trial court’s response to two jury notes inquiring as to the legal definition of “predisposed,” (2) object to the government’s closing argument that mischaracterized the entrapment defense and the parties’ relative burdens of proof, and (3) present the defendant’s lack of a criminal record. Id. Agreeing, the appellate court reversed and remanded, holding that “defense counsel’s cumulative errors rendered the proceeding unreliable under Strickland v. Washington, 466 U.S. 668[, 80 L.Ed.2d 674, 104 S.Ct. 2052] (1984). [People v. Lewis,] 2020 IL App (2d) 170900, ¶59[, 176 N.E.3d 896, 448 Ill.Dec. 359].” Id. The state petitioned for leave to appeal.

The Jury Trial

At trial, a special agent with the U.S. Department of Homeland Security (DHS) testified to coordinating a sting operation with the Aurora Police Department designed to arrest multiple individuals “on the demand side of human trafficking.” 2022 IL 126705 at ¶5. An investigator with the Aurora police testified to composing an ad posted on, which advertised the services of an escort who was 18 years old, which included a photo of “an adult female appearing in cut-off jeans and a midriff-baring top.” 2022 IL 126705 at ¶¶6 – 7. The investigator further testified that the officers involved were instructed to indicate that they were the mother of two minor girls, both available for sex in exchange for money. Id. Per sting protocol, the officers were to stop communicating with a suspect if the suspect indicated they wanted to have sex with an adult. 2022 IL 126705 at ¶5.

Via text, the defendant engaged a DHS agent pretending to be the girls’ mother. 2022 IL 126705 at ¶8. During this exchange, the defendant clearly indicated, at least four times, that he was not interested in having sex with a minor but was instead interested in sex with an adult. 2022 IL 126705 at ¶92. However, upon further discourse, the defendant finally agreed to meet at a local hotel. 2022 IL 126705 at ¶8. Another DHS agent, waiting in the hotel room, greeted the defendant upon his arrival. 2022 IL 126705 at ¶10. After a brief exchange in the hotel room, the defendant placed $200 on a nightstand and was then arrested. 2022 IL 126705 at ¶11.

Further testimony revealed that the defendant consented to a search of his cell phone and iPad, which revealed “[n]o inappropriate pictures of minors, no Internet searches for child pornography, and no evidence that defendant had tried to solicit a minor for sex on any other occasion.” 2022 IL 126705 at ¶14. Additionally, the defense called four character witnesses who testified that the defendant exhibited no interest in having sex with minors. 2022 IL 126705 at ¶66. Defense counsel did not present evidence that the defendant had no criminal history. Id.

During closing arguments, the state argued that “what we have to prove is that defendant was willing to do this, and the opportunity was there.” 2022 IL 126705 at ¶78. The state further argued that, “[i]f you find that the police did incite or induce him, then you can look at the next step, [predisposition].” 2022 IL 126705 at ¶35. The state also made comments to the jurors suggesting that the legal terms contained in the entrapment instruction might be beyond their understanding. 2022 IL 126705 at ¶37.

The trial court granted a defense motion to instruct the jury on the defense of entrapment as follows:

It is a defense to the charge made against the defendant that he was entrapped, that is, that for the purpose of obtaining evidence against the defendant, he was incited or induced by a public officer to commit an offense.

However, the defendant was not entrapped if he was predisposed to commit the offense and a public officer merely afforded to the defendant the opportunity or facility for committing an offense. 2022 IL 126705 at ¶22.

Despite this instruction, the jury twice sent notes to the judge asking for the legal definition of “predisposed.” 2022 IL 126705 at ¶¶24 – 26. The trial court judge replied in both instances, “You have all of the instructions, please continue to deliberate.” 2022 IL 126705 at ¶26.

The Illinois Supreme Court’s Analysis

The Supreme Court first held that defense counsel had erred by failing to insist that the trial court provide the legal definition of material terms in the entrapment instruction in response to the jury’s questions. 2022 IL 126705 at ¶56. Jurors are entitled to have their questions answered. 2022 IL 126705 at ¶58. Citing People v. Childs, 159 Ill.2d 217, 636 N.E.2d 534, 539, 201 Ill.Dec. 102 (1994), the Supreme Court argued that “[w]hen the jury asks a question on a point of law . . . or when the jurors are manifestly confused, the court has a duty to answer the question and clarify the issue in the minds of the jurors.” Id. Failure to do so has been held to be prejudicial error. Id.

Relying on People v. Sanchez, 388 Ill.App.3d 467, 904 N.E.2d 162, 328 Ill.Dec. 400 (1st Dist. 2009), the state argued that when words with commonly understood meanings appear in jury instructions, the court is not required to define them with additional instructions, “especially where the pattern jury instructions do not state that an additional definition is necessary.” 2022 IL 126705 at ¶61.

Determining that Sanchez was factually distinct and should not be followed, the Supreme Court reasoned that Sanchez failed to address the distinction between the common definition of “predisposed” and its narrower meaning in the context of the entrapment instruction, which necessitates the jury consider the defendant’s conduct prior to contacting the government agents. 2022 IL 126705 at ¶62. The issue is whether the defendant was ready and willing to commit the crime without any type of persuasion and before interaction with government agents. 2022 IL 126705 at ¶64. “While conduct and statements made by a defendant after contact by government agents may be relevant in determining defendant’s predisposition,” as the Supreme Court asserted, “the critical temporal focus is defendant’s conduct and state of mind prior to government contact.” [Emphasis added.] 2022 IL 126705 at ¶65.

Consequently, the Supreme Court reasoned, having been improperly instructed, the jury was unable to analyze the evidence to determine the defendant’s guilt. 2022 IL 126705 at ¶70. The trial court’s responses, therefore, were prejudicial error and an abuse of the court’s discretion. 2022 IL 126705 at ¶71.

The Supreme Court also found that defense counsel erred in failing to object to the state’s closing argument in which the prosecutor misstated the issues in an entrapment case. 2022 IL 126705 at ¶72. On appeal, the state erroneously argued that it could defeat an entrapment defense by proving either “(1) that defendant was not induced to commit the offense or (2) that he was predisposed to do so.” 2022 IL 126705 at ¶73. However, as the Supreme Court clarified, the entrapment statute requires the state to prove “(1) defendant was predisposed and (2) the government agents merely afforded him the opportunity or facility for committing the offenses.” Id., citing 720 ILCS 5/7-12.

Additionally, the state’s misstatement in its closing argument — “what we have to prove is that defendant was willing to do this, and the opportunity was there” — omitted reference to the critical temporal focus, allowing for the possibility that the jury would not appropriately focus on evidence of the defendant’s conduct during the period before the DHS agents posted the ad and engaged defendant in text messages persuading him to commit the crimes. 2022 IL 126705 at ¶79. Defense counsel’s failure to object allowed the state to mislead the jury as to what the state had to prove to establish defendant’s guilt beyond a reasonable doubt. Id.

Finally, the Supreme Court found that defense counsel erred when he failed to present evidence that the defendant had no criminal record, which would have corroborated his claim that he was not predisposed to commit the offenses. 2022 IL 126705 at ¶80. The state argued on appeal that defense counsel reasonably omitted evidence that the defendant lacked a criminal record since the defendant did elicit testimony that he had never attempted to have sex with minors. 2022 IL 126705 at ¶81. The Supreme Court argued to the contrary, noting that the relevance of a defendant’s criminal record in determining whether the defendant is predisposed to committing an offense is well established. 2022 IL 126705 at ¶82. By failing to present evidence of the defendant’s lack of a criminal record, defense counsel prevented the jury from considering evidence contraindicating the defendant’s predisposition and establishing his entrapment defense. Id.

Establishing Inducement

The Supreme Court emphasized that continuous interaction over an extended period is not necessary to establish inducement. 2022 IL 126705 at ¶¶90 – 91. The government agents in this case ignored protocol and used “subterfuge, deceitful representation, and coercive tactics shown by the numerous texts and interactions between law enforcement agents and defendant[, which] may have created the risk and established that defendant would not commit the crimes if left to his own devices but did so in response to the government’s inducement.” 2022 IL 126705 at ¶94. Whether defendant was thus induced is a question of fact for the jury — “a jury that received the legal definitions for the words ‘incited,’ ‘induced,’ and ‘predisposed.’ ” 2022 IL 126705 at ¶96.

Determining Predisposition

The Supreme Court also laid out six factors to be considered when determining whether a defendant is predisposed to commit a crime: (1) the character of the defendant; (2) the defendant’s lack of a criminal record; (3) whether the defendant had a history of criminal activity for profit; (4) whether the government initiated the alleged criminal activity; (5) the type of inducement or persuasion applied by the government or the way in which it was applied; and (6) whether the defendant showed hesitation in committing the crime, which was overcome only by repeated persuasion. 2022 IL 126705 at ¶99, citing People v. Ramirez, 2012 IL App (1st) 093504, 976 N.E.2d 513, 364 Ill.Dec. 235. Although ultimately a question for the jury, the Supreme Court found that upon consideration of the six factors as they applied to this case, the defendant did present sufficient evidence to suggest he may not have been ready and willing to commit the crimes without government persuasion. 2022 IL 126705 at ¶106.


The Supreme Court ultimately found that prejudice resulted from defense counsel’s cumulative errors, rendering the jury deliberations and verdict unreliable, affirmed the judgment of the appellate court, and reversed the trial court decision and remanded for a new trial. 2022 IL 126705 at ¶109.

For more information about criminal law, see DEFENDING CRIMINAL CASES: TRIALS, SENTENCING, APPEALS, AND POSTTRIAL ISSUES (IICLE®, 2022). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit

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