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    Colorado Criminal Defenses – The Defense of Entrapment In Internet Sting Operations – Entrapment and Computer Crimes

    Internet Sting Operations in Sex Crime Investigations

    Introduction – Unfailingly – clients who have been trapped in internet sting crimes feel very strongly that they have been “entrapped.”  The defense – described in detail elsewhere ( PUT LINK HERE) – is explored in this web page as it applies to so called internet crimes – that originate for the most part as STING operations.

    …..Creating a cyber-sting operation is relatively simple and entails: creating a username and profile for a minor online; having an officer peruse the Internet on targeted chat rooms under this username; and once the predator initiates contact with the officer, the officer then conducts private conversations with the predator in the chat room or on an instant messaging program.

    Cyberspace and Entrapment

    Cyberspace is a unique realm separate from the “real world” and poses problematic concerns where the traditional entrapment defense cannot effectively protect the innocent or prevent the abuse of authority by law enforcement.

    The entrapment defense has not adapted to the changes in our world.  It has been argued that innocent defendants are not afforded an effective entrapment defense in this new Cyber world.

    In order to adapt the traditional subjective and objective test of entrapment to Internet predation cases, a NEW standard that defines predisposition in cyberspace and holds law enforcement to a higher reasonableness standard needs to be asserted by criminal defense lawyers and adopted by the courts.

    Law enforcement agencies should be attacked in court unless they develop new detailed restrictions regarding deceptive practices.

    A recent law review article addresses the flaws of the traditional Entrapment Defense as applied to Internet sting cases and addresses new strategies to determine effective alternatives to the old entrapment defense.

    Part I discusses the history of the traditional entrapment defense as applied by both the subjective and objective tests.

    Part II of this note expresses the distinctions between cyberspace and the “real world.”

    Part III explains how the traditional entrapment defense has been applied to Internet predation cases currently and in the past.

    Part IV exposes the problems and concerns associated with applying the traditional entrapment tests to Internet predation cases.


    Part V discusses plausible remedies and alternatives to the traditional entrapment defense that can be implemented to ensure protection of the innocent and prevent abuse of law enforcement authority.  

    Part I – The history of the Entrapment Defense

    The entrapment defense was created in order to resolve two primary concerns: first, it protects innocent law abiding citizens from committing crimes due to deceptive police practices, and secondly, it ensures the reasonable allocation of resources by police agencies when they employ those deceptive practices.  As the need to prevent consensual crimes increased, the entrapment defense was also crafted to limit the scope of deceptive practices employed by police agencies in apprehending suspects in such crimes. 

    Stemming from the early 1930’s courts have implemented two tests, the subjective and the objective, in order to render the entrapment defense effective in preventing the abuse of police authority and protecting the innocent who have been induced to committing crime by law enforcement.

    The Subjective Test For Entrapment – Colorado ‘s Test

    The 1932 Supreme Court decision in Sorrells v. U.S. was the first to apply the subjective test to the entrapment defense.  In Sorrells the defendant was arrested for possessing and selling alcohol in violation of a prohibition statute when he sold whiskey to an undercover prohibition agent.  At trial Sorrells offered testimony and called various witnesses to prove his good character to rebut the prosecution’s allegations that he had a reputation as a “rum runner.”  Although the trial court could not produce any evidence that the defendant “ever possessed or sold any intoxicating liquor prior to the transaction in question,” it denied his entrapment defense and sentenced Sorrells to 18 months in prison.  The North Carolina Court of appeals affirmed this decision.

    This case was then appealed to the Supreme Court, where the Justices crafted the subjective test of entrapment to resolve the issue.  According to the Justices, “artifice and stratagem may be employed to catch those engaged in criminal enterprises,”  however, “it is unconscionable, contrary to public policy, and to the established law of the land to punish a man for the commission of an offense of the like of which he had never been guilty, either in thought or in deed, and evidently never would have been guilty of if the officers of the law had not inspired, incited, persuaded, and lured him to attempt to commit it.” 

    The Justices reasoned that the accused must be scrutinized to determine whether he was predisposed in committing the crime, even if the law enforcement agents never instigated their conduct.  According to the Court’s subjective analysis, when law enforcement has induced an individual to commit or attempt to commit a crime, the burden shifts to the prosecution to prove beyond a reasonable doubt that the accused was predisposed to committing that crime in order to escape the entrapment defense.  Since the prosecution could not offer evidence that Sorrells was ever predisposed to possessing or selling alcohol prior to the inducement of the undercover prohibition agent, the Supreme Court held that Sorrells was entrapped, and his conviction must be reversed. 

    Sorrells laid the foundation for the subjective test for entrapment.  Following Sorrells were a line of Supreme Court cases that further defined the importance of predisposition in cases where the accused raised the entrapment defense.  These rulings solidified the standard for entrapment cases on the federal level to be analyzed using the subjective test.  These cases have also added additional elements to the predisposition requirement, whereas currently, the accused must be shown to have been predisposed prior to or at the time of law enforcement contact.  These Supreme Court decisions do not clarify what factors may be considered to prove predisposition, however, some have required proof that law enforcement was “extremely egregious” in their actions to rebut a claim that the plaintiff was predisposed. 

    Some states, like California, have fashioned their own factors to determine predisposition, such as: the defendant’s character or reputation; whether the government first suggested the criminal activity; whether the defendant profited from the activity, whether the defendant demonstrated reluctance; and the nature of the government’s inducement. 

    The Objective Test of Entrapment

    The Objective Test for Entrapment was adopted by a minority of jurisdictions based off of the concurring opinion of Justice Roberts in Sorrells.  Under Roberts’ view, the jury should serve as a limit to the scope of authority of law enforcement agencies, and they must look more towards the agencies actions rather than the predisposition of the accused. 

    This Objective Test was also supported by Justice Frankfurter’s concurring opinion in Sherman v. U.S.  The Objective test was crafted from concurring opinions and not the majority decisions, however, many states have still adopted the test in their own model penal codes.  Therefore, even if the Federal Courts apply the Subjective test in Entrapment cases, there are a minority of states that hold law enforcement agencies under more scrutiny than the predisposition of the accused.

    Part II – Distinctions Between Cyberspace and the “Real World”

    The Unique World of Cyberspace

    Cyberspace, as apposed to “face-to-face” interactions, allows users the ability of anonymity.  Some servers require identification, however, for the computer savvy individual, fake identification can be easily produced.  Therefore, in cyberspace one distinct characteristic from the “real world” is that it can be problematic to determine the identity of Internet users. 

    Another characteristic of cyberspace is the ease of online access to information and contact with other individuals. 

    This allows a wide range of people, especially adolescents, to join chat rooms, on-line bulletin boards, and adult-oriented forums to access varying types of material that they would usually not have access.  Individuals who, in the “real world,” would not have access to certain types of information are granted admission via cyberspace, and various difficulties arise.

    Another unique characteristic of cyberspace is that individuals can express themselves without inhibitions due to the anonymity aspect of the Internet. 

    Individuals can speak freely on subjects that would be socially unacceptable in “real world” contexts.  Deception can also take new forms in cyberspace since determining identity is so problematic.  Furthermore, cyberspace does not allow for qualities inherent in face-to-face interactions such as voice inflection or body language, which can lead to confusion or increase the ability to deceive the recipient.

    Cyberspace and Crime

    In recent years many crimes have transitioned from “real world” settings to on-line settings in cyberspace.  One of the most patrolled crimes in cyberspace are sexual crimes. 

    Law enforcement has recently begun to use the same advantages of cyberspace employed by sexual predators in order to pose as children, then contact, lure, and capture these alleged sexual predators. These distinctions in cyberspace as opposed to the “real world” have created a set of entirely different variables and have raised new questions regarding the Entrapment Defense.

    How Law Enforcement Lure And Ensnare Individuals on Cyberspace – The Sting

    The most common way law enforcement captures an individual targeted as an Internet predator is by a cyber-sting operation.  Creating a cyber-sting operation is relatively simple and entails: creating a username and profile for a minor online; having an officer peruse the Internet on targeted chat rooms under this username; and once the predator initiates contact with the officer, the officer then conducts private conversations with the predator in the chat room or on an instant messaging program. 

    Once the foundation of the cyber-sting is formulated the officer continues correspondence until it is determined by the officer that the target makes clear that his intent is to have sexual contact.  Once this is determined the officer attempts to arrange a meeting with the predator and an arrest is subsequently made at that meeting.

    In prosecuting these Internet predators the state usually bases its claim on a federal statute enacted by Congress to deter child predation through the Commerce Clause.  This statute places culpability on individuals for attempt of child predation, even if the intended victim is actually an adult. 

    The Legal Defense of Impossibility

    The defense of impossibility is not an option for individuals prosecuted under these actions.

    To bolster its’ case in a cyber-sting, where there is no real victim, the state must prove either attempt or conspiracy, whereas the defendant took a substantial step beyond mere preparation to commit the crime or an overt act in furtherance of the conspiracy.

    Proving a substantial step or overt act can be achieved by showing the defendants travel to meet the decoy minor.  Therefore, in the majority of Internet predation cases defendants have taken a plea bargain and plead guilty to lesser charges in order to avoid possible punishment they would face in arguing a defense.  

    Part III – How Entrapment has been applied to Cyberspace

    Setting Precedence: Jacobson v. United States

    The majority of cyberspace predation cases where the accused raises the entrapment defense rely on the subjective test outlined by Jacobson v. U.S.  In Jacobson the defendant purchased a legal magazine that depicted young men in the nude.  Subsequently, the law regarding child pornography changed and Jacobson, the defendant, was targeted by law enforcement agencies due to his name being listed under this magazine’s purchase orders.  Posing as various political organizations advocating for First Amendment freedoms, the Government was finally able to induce Jacobson into ordering a pornographic catalog depicting children in sexual situations.  Jacobson was then arrested and convicted at trial for violating 18 U.S.C. § 2252(a)(2)(A.)  The appeals court affirmed the decision denying Jacobson’s Entrapment Defense.

    The only issue the Supreme Court had to determine in Jacobson’s Entrapment Defense was whether Jacobson was predisposed to purchasing child pornography prior to the Governments repeated contact spanning over the previous two years.  In their analysis the Justices reasoned that if Jacobson had been ready and willing to purchase child pornography as soon as the opportunity presented itself, Jacobson would have satisfied the predisposition element barring his entrapment claim.  The government, however, did not prove that his predisposition was independent and not the “product of the attention that the Government had directed at petitioner” since the two years prior.  Therefore the Court concluded that the prosecution failed to show beyond a reasonable doubt that Jacobson was predisposed to ordering child pornography, and ruled in favor of Jacobson’s entrapment defense.

    Since Jacobson dealt with the distribution of child pornography through the mails, many defendants in cyberspace predation cases rely on Jacobson in order to rebut their predisposition in committing the crime.  Jacobson applied the subjective test for the entrapment defense, and the defendants in these cases had to show that they were not predisposed prior to the governments contact and that they were not ready or willing to commit the crime when offered the opportunity.  This proved to be a rigid obstacle to overcome since cyberspace poses different variables, however, some defendants have been able to effectively plead their entrapment defense. 

    In The Federal Judicial System – There Is No Uniformity

    Federal Circuits have not applied the entrapment defense articulated in Jacobson in a uniform fashion.  This is primarily because many Circuits rule that the entrapment defense should be applied as the State sees fit.  Even when federal case law allows for a less stringent entrapment analysis,  state courts have applied their own standard.  In one state, law enforcement can contact an individual first, induce him into crime through friendship, and deny his entrapment claim based on predisposition evidence obtained before he even knew the actual age of the “victim.”  In another state these same factual similarities warrant the affirmative defense of entrapment.  There is no uniformity on the state level regarding the entrapment defense and defendants are left subject to the definition of inducement and predisposition interpreted by their state. 

    Even when role-playing or mere exploration of fantasy is alleged, circuits have applied little weight to the evidence.  Instead, courts rebut these assertions based on state law of conspiracy or attempt, where the defendant’s conception of the “victim’s” age is irrelevant to find him culpable.  Furthermore, some courts have found predisposition where there is no evidence that the defendant previously engaged in sexual activities with minors, only intended friendship with “victim,” and showed apparent caution in becoming sexually active with the “victim.”  Instead, these courts give less weight to this type of evidence unless it is shown that evidence against such findings is clearly wrong or clearly adverse to law.  Therefore, defendants in cyberspace predation cases have had a “steep hill to climb” when asserting entrapment.    

    Part IV – Problems with Applying the Traditional Definition of Entrapment to Cyberspace

    The Subjective Test is Inadequate

    Currently courts such as Colorado use the subjective test of Jacobson in Internet predation cases, however, this test has been found to be an ineffective defense for the accused in these cases.

    One commentator, states that “predisposition, usually the critical element under the subjective test, is a forgone conclusion in almost all of the cases because the defendants actively log onto certain chat rooms and engage in repeated, typed communications with their intended victims.”  Others feel that these communications are a poor indicator for predisposition because users can “remain anonymous, identity is disguisable, and role-playing may take place.”  Along with the potential of “role-playing” there is a risk that some of these individuals may only be making incriminating statements because of their lack of inhibitions due to the cyberspace atmosphere, which challenges the reliability of these statements in predisposition analysis. 

    Furthermore, in cases where law enforcement agencies claim that they have targeted suspects only after receiving complaints from another user or amateur system operator, the courts will need to determine whether these accusations indicate sufficient predisposition to warrant stings involving undercover agents, or user identification requests.  Finally, it would be problematic to prove predisposition in instances where the Government agents, posing as adolescents and using suggestive user names, repeatedly contact individuals creating an “un-artificial” situation that would not be presented in the “real world.”

    The Objective Test is also Ineffective in Cyberspace

    Individuals will not have an efficient Entrapment Defense in states that employ the objective test.  Scrutinizing law enforcement procedure would be difficult because some restrictions, (like sexual relationships with the suspect,) would be unacceptable in the “real world,”  however in cyberspace, (cybersex,) may be necessary to lure a target.  Under the objective test “sympathy, pity, or close personal friendships” would constitute prohibited activities for law enforcement;  however, there has not been consensus on how courts should weigh these prohibitions in cyberspace. 

    With face-to-face interactions in the “real world” a person could be given clues about the nature of the relationship with the undercover agent, in cyberspace however, these clues are reduced and law enforcement is allowed greater influence over individuals while maintaining traditional police procedure to avoid Entrapment.  One final note that commentators make regarding the ineffectiveness of the objective test in cyberspace is that “the conduct and conversations of the agents can be very difficult to trace or verify,” thereby inhibiting accountability. 

    Other Concerns Regarding Traditional Entrapment and Cyberspace

    Commentators have also highlighted other considerations regarding the effectiveness of the Entrapment Defense in cyberspace.  One concern is that “private entrapment” has increased, meaning that citizen vigilantes have employed deceptive tactics to capture pedophiles, vitiating any Entrapment Defense the individual may have had. 

    Evidentiary issues are also called into question in cyberspace, where courts would have to decide what type of “cybertalk” constitutes requisite predisposition enough to establish probable cause to issue warrants for arrest.  Other evidentiary issues that arise as well are introduction of past crimes evidence at trial and hearsay problems due to the fact that most predisposition evidence is contained in previous communications saved on a computer’s storage system where the communication can be easily manipulated. 

    One final concern is whether predisposition, a jury question, should be heard by a jury of the “real world” community or by a jury consisting of the defendant’s cyberspace community.  Initially this concern surrounds the ability to be tried by a jury of one’s peers, and a determination of acceptable practices in cyberspace, which probably differ from acceptable practices in the real world.  

    Part V – Recommendations/Alternatives to Traditional Entrapment

    Discard Subjective and Objective Test, then Create New Standard

    It is important to note that various commentators have shared views on how to remedy the ineffectiveness of the traditional entrapment defense,  however, many of their ideas should be incorporated cohesively in order to resolve the issue. According to these commentators, the subjective and objective tests are ineffective in protecting the innocent or preventing law enforcement abuse of authority.  Therefore these tests should be discarded when applied to cyberspace and a new standard should be incorporated. The legislature rather than the courts should craft this new standard  since the courts currently rely on cases that use the traditional tests for entrapment. 

    The legislature should implement new evidentiary guidelines solely for Internet cases where they devise a bright-line definition of what constitutes predisposition in cyberspace.  Expounding on this thought, the Legislature should decide what prior communications, postings, or sites visited determine the likelihood that an individual will commit a crime regardless of Government involvement; and they should also consider how much probable cause these actions create to satisfy warrant requirements.

    This procedure should also make considerations for communications that can be argued as role-playing or “big talk,”  to exclude criminal liability for individuals who only exhibit diminished inhibitions in cyberspace. Thus the new standard implemented by the legislature should include a bright-line definition of predisposition as it relates to cyberspace cases.

    Aside from addressing predisposition, the Legislature should also determine limitations on law enforcement’s use of deceptive tactics in cyberspace. According to commentators, law enforcement in cyberspace should have a higher reasonableness standard implemented to determine whether the tactics employed had rational means.

    This reasonableness standard should not only apply a sliding scale of deception to warrant whether police action was justified, but it should also provide a basis for a Trier of fact to determine whether the actions of the police were appropriate given the circumstances distinguishing cyberspace from the “real world.” 

    Some commentators also believe that the implementation of a reasonableness standard should also mandate law enforcement to seek judicial approval for an operation by showing that they had a reasonable suspicion that the suspect has committed or will commit a crime based off of cyberspace interactions.  Accordingly the Legislature should also incorporate a higher reasonableness standard to apply to cyberspace cases in order to determine whether police actions employed rational means.   

    Law Enforcement Regulations on Cyberspace Interactions

    One of the major concerns regarding the Internet entrapment defense is that law enforcement procedures are not drafted to consider the unique realm of cyberspace.  As stated earlier, some procedures are unacceptable in the “real world,” such as sexual relationships with the suspect, but may not be applicable to cyberspace, just as “cybersex” may be useful in determining predisposition. 

    Therefore federal law enforcement procedures addressing cyberspace and its distinctions from the “real world” should be created.  These procedures should regulate how to effectively locate the predators the officer is seeking, define what would classify a target as predisposed, explain how to offer the opportunity for crime without inducing the target, and describe how to use deceptive techniques in the most effective manner without wasting resources.

    Law enforcement agencies should also create guidelines to prohibit officers from inducing individuals through “sympathy, pity, or close personal relationships.” This can be accomplished by mandating officers to make clear to the target that correspondences are opportunities to commit crime only, with no other relationship ties. Commentators also feel that procedure should be implemented that defines the requisite intent for criminal liability on-line. 

    Furthermore, law enforcement agencies need to bolster the reliability of evidence produced,  therefore these procedures should instruct officers to collect evidence on secure computer systems that can trace their conduct and conversations. One final suggestion is for law enforcement agencies to specify what qualifies as a “substantial step” for attempt in cyberspace so that courts can determine when an Internet user has gone beyond mere preparation and has begun to act on his intended crime.  For these reasons, law enforcement agencies should consider the distinctions between cyberspace and the “real world” and incorporate procedures that will be more applicable to the Internet setting.

    Other Recommendations

    Commentators have explained that one problematic concern with the ineffectiveness of the entrapment defense is that “private entrapment” has increased.  In order to deter this rising concern, federal laws should be implemented to penalize individuals who conduct private sting operations for the sole purpose of vigilantism. That way citizens will refrain from taking law into their own hands and allow law enforcement to police cyberspace. Another concern relates to the manipulation of predisposition evidence produced from Internet site visits, communications, and web postings.  Mandating the use of secure computer programs to identify, collect, and store evidence while restricting subsequent manipulation can alleviate this issue.

    One final concern relates to the jury the accused in a cyberspace case should be entitled.  Since the majority of evidence obtained in these types of cases is obtained from cyberspace,  it only seems equitable to grant the accused with a jury that is adequately oriented with Internet terminology, usage, and experience. The accused should be considered an individual of a particular “cyber-community”  and as such should be entitled to a jury of his/her “cyber-community” peers. Accordingly, the jury pool for a defendant in a cyberspace case should only consist of individuals adequately knowledgeable of the cyberspace realm to promote fairness and equity.


    The traditional Entrapment Defense was designed to protect innocent law-abiding citizens from committing crimes due to deceptive police practices, and ensure the reasonable allocation of resources by police agencies when they employ those deceptive practices. In applying the defense, federal courts employ the subjective test, which scrutinizes whether the accused was predisposed to committing the crime regardless of law enforcement involvement. Conversely, there is a minority of states that employ the objective test, which analyzes the government’s actions in the inducement of the crime.

    The flaw with the traditional entrapment defense is that it cannot effectively transpose either the subjective or objective test to cyberspace, leaving defendants in Internet predation cases without an effective defense.

    This is because Internet communications are a poor indicator for predisposition due to anonymity, possible role-playing, and potential “big talk.” Another concern relates to the ability to apply the same law enforcement procedure in both cyberspace and the “real world,” since some unacceptable behavior in the “real world” has not been questioned in its application to cyberspace. Furthermore, communications produced as evidence from cyberspace is easily manipulated by law enforcement, and reliability of this evidence is problematic.

    Since the traditional entrapment defense is ineffective at providing the innocent a defense in cyberspace cases, alternatives must be employed.

    First, the subjective and objective tests should be discarded. The legislature should then incorporate a new standard for Internet predation cases where cyberspace predisposition is defined, and law enforcement is held to a higher reasonableness standard.

    Secondly, Law enforcement agencies should employ regulations on police procedure to promote effective targeting, prevent unjust inducements, and promote reasonable use of resources. Lastly, individuals in cyberspace cases should be entitled to a jury of their “cyberspace-community” that is knowledgeable of the cyberspace realm to ensure fairness and equity. 

    With the popularity and growth of cyberspace, it is imperative that law adapts to accommodate this unique realm. As on-line crime increases, so does the presence of Internet policing, leaving the innocent subject to both dichotomies.

    Without an adequate Entrapment Defense, unsuspecting individuals can be induced by agents to commit crimes while their very own innocent communications and postings further condemn their actions. It is time to re-evaluate the entrapment defense as it is applied to cyberspace in order to prevent law enforcement from “shooting an unarmed, defenseless, innocent person.”  


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    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
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