Is Entrapment a Defense in SC?

When is entrapment a defense in SC?

Your friend John asks you to connect them with your neighbor who sells drugs, and you say no. You don’t sell drugs and you don’t want any part of it. Then John asks you again. And again. He is texting and calling repeatedly, he is clearly desperate, and, finally, you break down, introduce them, and make the deal.

Is that entrapment?

What if you are a recovering heroin addict who has been on methadone maintenance for the past year? An acquaintance you met at the clinic has been harassing you for weeks – they are desperate, they are getting sick, and they just want you to connect them with your old dealer that you haven’t seen in over a year. You know you can’t introduce them, so you finally break down and go pick up some product for what turns out to be an informant…

Entrapment? Is it okay for police to drag someone back into the drug trade just so they can make an arrest?


Entrapment is a defense in SC, but it is one that is rarely used and seldom successful. Why is that? What are the elements of entrapment, how do you prove entrapment, and what are the drawbacks to raising entrapment as a defense in SC?

When is Entrapment a Defense in SC?

Entrapment is a defense in SC, but it is often misunderstood by both laypersons and criminal defense attorneys.

For example, one SC lawyer states on their website that police “cannot make a lawful arrest if they have encouraged someone, in any way, to commit a crime. Rather, the police must wait for the offender to make it apparent that they intend to engage in illicit activities…”

That is the common understanding of what entrapment means, but is that true?

SC law does allow police to “make a lawful arrest if they have encouraged someone… to commit a crime.” A defendant whose lawyer who walks into a trial and argues to the court that police “cannot make a lawful arrest if they have encouraged someone, in any way, to commit a crime” is about to be disappointed. And, possibly, convicted.

Why? What does SC law say about entrapment as a defense?

Why Entrapment is Rarely a Successful Defense

Entrapment as defined in SC law (and as the judge is going to instruct the jurors) is not what most people think.

Undercover police officers encourage people to commit crimes all the time – that alone is not entrapment. Even when police use trickery, fraud, or lean on a person hard to get them to commit a crime, the charges don’t get dismissed by the court, although you may get a jury instruction from the court that allows the jurors to acquit you based on the entrapment.

Entrapment is an Affirmative Defense

Entrapment is an affirmative defense. That means that, once you raise the defense, the prosecutor must disprove it beyond a reasonable doubt.

That sounds like a good thing, except that the prosecutor’s best way to disprove entrapment is by proving predisposition, which opens the door to evidence and testimony that would not have been admissible otherwise…

What are the Elements of Entrapment in SC?

First, you must show that the police (or someone working for the police) “induced, tricked, or incited” you to commit a crime. From State v. Brown:

“One pleading entrapment has the burden of showing that he was induced, tricked or incited to commit a crime, which he would not otherwise have committed.”  Johnson, 295 S.C. at 217, 367 S.E.2d at 701; Babb v. State, 240 S.C. 235, 237, 125 S.E.2d 467, 467 (1962), cert. denied, 375 U.S. 979 (1964) (“Entrapment is an affirmative defense to the crime charged and imposes upon the accused the burden of showing that he was induced to commit the act for which he is being prosecuted.”).

But proving inducement to commit the crime doesn’t get your case dismissed – it gets a jury instruction from the court.

The Judge Must Agree That There is Evidence of Entrapment

If you can establish some evidence of entrapment either through cross-examination (preserving your right to final closing argument) or through your own witnesses (losing your right to final closing argument), then the court must give a jury instruction on entrapment – instructing the jurors that, if you were “induced, tricked, or incited to commit [the] crime,” and if you were not predisposed to commit the crime, they must find you not guilty.

The Jurors Must Agree that There was Entrapment

Even if the Court agrees there is evidence of entrapment, the judge does not dismiss your case or grant a directed verdict. It’s a “threshold” finding that there is enough evidence for the jurors to consider it.

At that point, the jury can choose to convict or acquit based on the evidence presented and the attorneys’ arguments.

An Entrapment Defense Opens the Door to Predisposition

The most dangerous part of raising entrapment as a defense is that it “opens the door” to evidence and testimony regarding “predisposition” – evidence that would not have been admissible otherwise:

“[T]he defendant has the initial burden to produce more than a scintilla of evidence that the government induced him to commit the charged offense, before the burden shifts to the government to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime.”  United States v. Sligh, 142 F.3d 761, 762 (4th Cir. 1998) (citations omitted).

If you are on trial for drug distribution, for example, the last thing you want to see during trial is a parade of witnesses telling the jurors that you are a drug dealer.

It’s the sort of character evidence that is prohibited by the rules of evidence because it tends to make jurors convict a person on an improper basis – you’ve sold drugs in the past; therefore, you must have sold drugs this time as well…

But, I’m not a drug dealer so they could never produce a witness who says I am, you say?

What about that guy, who pestered you to help him find drugs so that he could stay out of prison? When the prosecutor (or his attorney) tells him they need truthful testimony that you’ve sold drugs to him before and that his testimony will help him stay out of prison, what do you think he is going to say?

With an endless stream of defendants in the local jail looking for deals on their cases, what are the odds that one of them will recall some damaging information about you once they hear that your case is going to trial?

Ethical prosecutors in pursuit of justice would never use perjured testimony to get a conviction. Would they?

So, when is Entrapment a Defense in SC?

Barring unethical conduct on the part of your prosecutor, entrapment can be a valid defense in SC when 1) police encouraged you to commit the crime and 2) you were not predisposed to commit the crime.

If you have never used or sold drugs and you are tricked into doing it by an undercover officer or an informant, you may have a solid entrapment defense.

Even if you have used or sold drugs in the past, if you left that lifestyle long ago and the police dragged you back into it, you may have an entrapment defense, although you could still be convicted by jurors depending on their view of the evidence.

If police encouraged you to make a drug deal and you are a drug dealer, you do not have an entrapment defense. You not only don’t have an entrapment defense but simply raising the defense creates a very real risk of a conviction based on “predisposition” evidence that would not have been admissible otherwise.

SC Criminal Defense Lawyer in Charleston

Grant B. Smaldone is a criminal defense attorney in Charleston, SC who handles state and federal criminal defense cases.

If you’ve been charged with any crime in Charleston, SC, call now at (843) 808-2100 or send a message through our website to set up a free consultation about your case.