Entrapment is a legal defense that can arise when law enforcement induces a person to commit a crime that they otherwise would not have committed. While undercover operations, confidential informants, and other investigative techniques are commonly used by police, there are limits to what officers can do when investigating suspected criminal activity. Understanding where that line is can be important if you are facing an arrest charge based on an undercover investigation.
At The Digby Law Firm, we help clients throughout Benton, Bryant, Little Rock, and Central Arkansas understand their rights and evaluate the circumstances surrounding criminal investigations. An allegation resulting from an undercover operation does not automatically mean entrapment occurred, but the methods used by law enforcement may deserve careful examination.
Understanding Entrapment Under Arkansas Law
Entrapment is often misunderstood because people sometimes assume that any involvement by an undercover officer or informant creates an entrapment defense. That is not necessarily the case.
Law enforcement is generally permitted to investigate suspected criminal activity and provide opportunities for people to commit crimes they are already willing to commit. The legal question becomes more complicated when police conduct goes beyond providing an opportunity and instead improperly induces a person to engage in criminal conduct.
The circumstances surrounding the investigation are therefore extremely important. An attorney must look beyond the fact that an undercover officer was involved and examine exactly what was said, what was offered, how the investigation developed, and whether the accused was predisposed to commit the alleged offense.
What Arkansas Law Actually Says About Entrapment
Arkansas’s entrapment defense is written into state law at Ark. Code § 5-2-209. The statute defines it this way:
“Entrapment occurs when a law enforcement officer or any person acting in cooperation with a law enforcement officer induces the commission of an offense by using persuasion or other means likely to cause a normally law-abiding person to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.”
In practice, that means a defendant has to show inducement — persuasion or pressure that would lead an otherwise law-abiding person to commit the offense — not just that an officer or informant was involved.
Arkansas law also changed in a significant way in 2011. In Smoak v. State, 2011 Ark. 529, the Arkansas Supreme Court held that a defendant does not have to admit to every element of the charged offense in order to raise an entrapment defense. Before that ruling, defendants effectively had to choose between arguing they didn’t commit the crime and arguing they were entrapped into committing it. After Smoak, a jury can consider entrapment even if the defendant is simultaneously disputing the prosecution’s version of events.
The practical effect of the statute and Smoak together: a defendant can maintain their innocence on some elements of the case while still asking a jury to consider whether law enforcement’s conduct crossed the line into entrapment. Prosecutors, in turn, can point to evidence that the defendant was already predisposed to commit the offense before police became involved.
How Can Entrapment Be Proven?
Proving entrapment can be complicated because these cases often depend heavily on the details of conversations and interactions between law enforcement and the accused. Evidence may include recorded conversations, text messages, surveillance footage, police reports, witness statements, and communications involving confidential informants.
The defense may examine whether officers repeatedly pressured someone to participate, used extraordinary inducements, or continued encouraging conduct after the person initially refused. The circumstances before the alleged offense can be just as important as what happened during the offense itself.
At the same time, prosecutors may argue that the defendant was already willing to commit the crime and that police merely provided an opportunity to do so. This makes the investigation and presentation of evidence particularly important.
Opportunity Is Not Always Entrapment
One of the most important distinctions in an entrapment case is the difference between providing an opportunity and improperly inducing criminal conduct.
For example, an undercover officer offering to purchase illegal drugs from someone already willing to sell them does not necessarily establish entrapment. Police may conduct undercover investigations precisely because they are attempting to identify people already engaged in criminal activity.
By contrast, circumstances involving persistent pressure, coercion, or extraordinary persuasion may raise different legal questions. Whether those actions meet the legal standard for entrapment depends on the specific facts and applicable law.
In short:
- Likely just an opportunity: an officer or informant makes a single offer to someone already willing to engage in the conduct.
- Possible entrapment: officers repeatedly pressure, pursue, or use extraordinary inducements after a person has already refused.
Why the Investigation Matters
Entrapment claims require more than simply accepting the prosecution’s version of events. A defense attorney should examine how the investigation began and whether law enforcement had evidence of criminal intent before becoming involved.
This may involve reviewing communications between officers and the accused, examining recordings, investigating the role of confidential informants, and comparing the evidence with statements contained in police reports.
At The Digby Law Firm, we take a comprehensive approach to criminal defense. As an experienced Arkansas criminal defense lawyer, Bobby Digby understands the importance of examining the circumstances surrounding an arrest charge rather than focusing solely on the allegations.
Building a Defense Around the Facts
Every criminal case is different, and an entrapment defense may not be appropriate in every investigation. However, that does not mean the methods used by law enforcement should go unquestioned.
A strong defense begins with understanding what actually happened. When appropriate, an Arkansas criminal defense attorney can identify inconsistencies in the prosecution’s evidence, challenge investigative practices, and determine whether constitutional or other legal protections apply.
For more serious allegations, the stakes can be especially high. Individuals facing charges involving violence, controlled substances, or other serious offenses may need representation from a defense team prepared to investigate every aspect of the case.
Protecting Your Rights During an Investigation
If law enforcement has contacted you about suspected criminal activity, it is important to take the situation seriously. Statements made during an investigation can become evidence, and attempting to explain your side without legal guidance can sometimes create additional problems.
If you believe you were pressured or induced into committing an offense by law enforcement, discuss the circumstances with an attorney before making additional statements.
Frequently Asked Questions
Can you raise an entrapment defense if you admit you committed the crime?
Yes, under certain circumstances. Before 2011, Arkansas required defendants to admit every element of the charged offense before a court would consider an entrapment defense. In Smoak v. State, the Arkansas Supreme Court removed that requirement, allowing a defendant to contest the prosecution’s case while still asking a jury to consider entrapment.
What happens if an entrapment defense succeeds?
If a jury finds that law enforcement induced the offense and the defendant was not predisposed to commit it, entrapment is a complete defense — it can result in an acquittal on the affected charge. Whether it applies, and how strong the evidence is, depends heavily on the specific facts of the investigation, which is why an early case review matters.
The Digby Law Firm represents clients in Benton, Bryant, Little Rock, and throughout Central Arkansas. If you are facing an arrest charge or believe improper investigative tactics played a role in your case, contact us today for a free consultation with an experienced Arkansas criminal defense attorney.