Undercover agents and sting operations are utilized as a means to effectively identify criminals and enforce the law. The deception and inducement often involved in undercover operations is not in itself forbidden, but using law enforcement officials to induce an otherwise law-abiding citizen to commit a crime he or she would not have committed absent the government operation will often raise the issue of whether the defendant was entrapped. The entrapment defense is an affirmative defense asserted by individuals who, instead of challenging the existence of the elements which constitute the crime charged, alternatively argue that the methods of inducement used were such that absent government involvement, the individual would never have committed the crime. This Note will examine the way the entrapment defense has been treated across jurisdictions. Specifically, this Note argues that the State v. Canaday decision may show that the Nebraska Supreme Court has adopted the view taken by the United States Supreme Court and various other jurisdictions in requiring the prosecution to demonstrate positional predisposition if it is to successfully defeat an assertion of the entrapment defense. The background section presents information necessary to understand the elements and operation of the entrapment defense, and more specifically, the importance of the element of predisposition. This section traces the history of how the United States Supreme Court and the Eighth Circuit Court of Appeals have addressed the element of predisposition. This history will provide an illustration suggesting that these jurisdictions are making a shift toward requiring a showing of positional predisposition as part of the prosecution’s burden when attempting to defeat an assertion of the entrapment defense. The analysis section focuses on how this shift toward requiring a showing of positional predisposition has also been recognized by the Nebraska Supreme Court and the important implications this shift will have upon not only the burden of the prosecution but also on the way that undercover operations are designed.
Nebraska and the Entrapment Defense: A Movement Toward Positional Predisposition? State v. Canaday, 263 Neb. 566, 641 N.W.2d 13 (2002),
82 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol82/iss3/8