Understanding Arizona Affirmative Defenses
One of the best ways to understand the entrapment defense in Arizona is to read the standard jury instructions. Arizona Pattern Jury Instructions for criminal cases tracks the language of A.R.S. § 13-206 and provides:
The defendant has raised the affirmative defense of entrapment with respect to the charged offenses. In this case the defendant must prove the following by clear and convincing evidence:
- The idea of committing the offense[s] started with law enforcement officers or their agents rather than the defendant; and
- The law enforcement officers or their agents urged and induced the defendant to commit the offense[s], and
- The defendant was not predisposed to commit the type of offenses[s] charged before the law enforcement officers or their agents urged and induced the defendant to commit the offenses[s].
The defendant does not establish entrapment if he or she was predisposed to commit the crime.
It is not entrapment for law enforcement officers or their agents to use a ruse or to conceal their identity.
The conduct of law enforcement officers and their agents may be considered in determining if the defendant has proven entrapment.
If you find that the defendant has proven entrapment by clear and convincing evidence you must find the defendant not guilty of the offense[s].
In 1997, the legislature codified the entrapment defense in A.R.S. § 13-206. See State v. Preston, 197 Ariz. 461, 463–64, 4 P.3d 1004, 1006–07 (App. 2000).
The statute for the entrapment defense requires that the defendant admits the substantial elements of the offense[s] as a condition of raising the defense. 197 Ariz. at 464, 4 P.3d at 1007. Also, the statute now requires the defendant to prove entrapment by clear and convincing evidence. Id.
Subsection D of the statute required that the trial court instruct the jurors that the defendant had admitted the elements of the offense, and “that the only issue for their consideration is whether the defendant has proven the affirmative defense of entrapment by clear and convincing evidence.” A.R.S. § 13-206(D).
But in Preston, the Arizona Court of Appeals declared subsection D of the statute unconstitutional because it effectively denied a criminal defendant the presumption of innocence and the right to a jury determination of guilt. 197 Ariz. at 466–68, 4 P.3d at 1009–11.
Instead, the Preston Court held that subsection D was severable from the remainder of the statute. Id. at 468, 4 P.3d at 1011. The court upheld placing upon the defendant the burden of proving the affirmative defense of entrapment by “clear and convincing evidence.” Id. at 464–65, 4 P.3d at 1007–08.
Recent Court Ruling on Entrapment Defense in Arizona
A more recent case dealt with the constitutionality of requiring the Defendant to admit to the substantive elements of the offense. The Supreme Court of Arizona recently decided the case of State v. Gray, — P.3d ——, No. CR-15-0293-PR, 2016 WL 3390236 (Ariz. June 20, 2016).
In this case, the Defendant was charged with sale of narcotics for violating A.R.S. § 13–3408(A)(7), which provides that “[a] person shall not knowingly … transport for sale, import into this state, offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer a narcotic drug.”
The Defendant gave incriminating statements to an undercover police officer in a recorded conversation. The Court found he did not affirmatively admit to the substantial elements of the crime charged, and thus could not assert entrapment defense, even though the defendant did not contest officer’s testimony explaining the events captured in the audio recording.
The Court found the defendant did not affirmatively admit the substantial elements of the offense, and although the officer asked the defendant to help him obtain some “hard,” which was a slang term for crack cocaine, the recorded conversation alone did not prove that defendant, in fact, provided the drugs to the officer. Ariz. Rev. Stat. Ann. §§ 13-206(A), 13-3408(A)(7).
The Defendant was convicted and sentenced to over nine years in jail for accepting an undercover officer’s invitation to obtain twenty dollars’ worth of crack for a fee of ten dollars. Because he was not allowed to present an entrapment defense without surrendering fundamental rights, the dissenting opinion pointed out that “we will never know whether the Defendant was a cunning drug courier awaiting precisely such an opportunity, or whether he was simply waiting for a bus.”
In the case, the Supreme Court held that the defendant was required to affirmatively admit, by testimony or other evidence, the substantial elements of the offense, to claim the entrapment defense. The requirement to affirmatively admit the elements of offense did not violate the Fifth Amendment privilege against self-incrimination.
Also, the Court found that the defendant, who gave incriminating statements to undercover police officer, did not affirmatively admit the substantial elements of the crime charged, and thus could not claim entrapment.
Arizona’s Entrapment Defense Under A.R.S. § 13–206(A)
The Court found that A.R.S. § 13–206(A) affords a defense of entrapment only when the defendant affirmatively admits the substantial elements of the charged offense. A defendant cannot invoke this affirmative defense merely by declining to challenge the state’s evidence, even when it includes incriminating statements made by the defendant to an undercover officer. The Court granted review because the application of the statutory entrapment defense presents a recurring issue of statewide importance.
The Court decided whether § 13–206 requires a defendant who requests a jury instruction on the entrapment defense to affirmatively admit the substantial elements of the offense and, if so, what qualifies as “other evidence” for such an admission.
By its terms, § 13–206 requires a defendant “to admit … the substantial elements of the offense charged.” The statute does not expressly address whether a defendant can “admit” the elements merely by not challenging the state’s evidence.
The defense argued that the Court should construe the statute as not requiring a defendant to affirmatively admit the elements. The defense pointed out that “silence can, in some contexts, be deemed an admission, and [that the Court] should deem his not offering evidence to contradict his recorded statements to be an “admission” for purposes of § 13–206.
After considering the history of the entrapment defense in Arizona, the Court held that the legislature in enacting § 13–206 generally codified the rule that in order to raise an entrapment defense, the accused “must affirmatively admit, by testimony or other evidence, the substantial elements of the offense….Such an admission cannot be accomplished merely by the defendant passively declining to challenge the state’s evidence.”
The defense also argued that requiring a defendant to affirmatively admit the elements of a crime before claiming entrapment conflicts with the Fifth Amendment’s guarantee that “no person shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. The Court ultimately decided that requiring a defendant who chooses to assert an entrapment defense to admit the elements of the charged offense does not “compel” self-incrimination.
The Court also found that limiting the entrapment defense to those who choose to admit the elements of the crime also does not implicate the “unconstitutional conditions” doctrine.
Finally, the Court decided that although the defendant made incriminating statements in his recorded conversation, he did not affirmatively admit the substantial elements of this offense.
A dissenting opinion was filed by Judge Bolick who pointed out that the State of Arizona has adopted a uniquely narrow—indeed, “draconian”—view of the entrapment defense.
The dissenting opinion reasoned that the Defendant should have been entitled to raise an entrapment defense. The dissenting opinion found that Arizona “is unique, unfortunately, is its statutory requirement that a criminal defendant must admit the substantial elements of the crime before raising an entrapment defense, a rule the majority today affirms.
Arizona’s outlier status in that regard is well-recognized but not well-regarded. The dissenting judge reasoned that by requiring a defendant to affirmatively admit the substantial elements of the crime, the statute (especially as construed in this decision) implicates the defendant’s right against self-incrimination, protected both by the Fifth Amendment (“No person … shall be compelled in any criminal case to be a witness against himself….”), and by article 2, section 10 of the Arizona Constitution (“No person shall be compelled in any criminal case to give evidence against himself….”).
Recognizing that the entrapment defense plays an important role not only in protecting the due process rights of criminal defendants by ensuring that they will be punished only for crimes for which they are genuinely culpable, it also is important because it constrains government conduct that is incompatible with a free society.
The dissenting opinion also recognized that although there is no recognized constitutional right to an entrapment defense, forcing defendants to choose between raising the defense and forfeiting precious constitutional rights presents an unconstitutional condition.
The doctrine of unconstitutional conditions prevents the government front granting a benefit on the condition that the beneficiary surrenders a constitutional right, even if the government may withhold that benefit altogether. Thus, the dissent reasoned that the A.R.S. § 13–206(A) affirmative admission requirement constitutes an unconstitutional condition and may not be required to assert an entrapment defense.
Additionally, the dissenting opinion found that the majority opinion exacerbates the problem by interpreting “other evidence” and “substantial elements” to prevent the Defendant in that case from raising an entrapment defense even though his words, entered into evidence by the State, were essentially an admission of the crime.
In State v. Gray, — P.3d ——, No. CR-15-0293-PR, 2016 WL 3390236 (Ariz. June 20, 2016), the Supreme Court of Arizona took a draconian view of the entrapment defense which, as a practical matter, might force the Defendant to take the stand and admit all elements of the offense before the jury instruction for entrapment can be read to the jury.
Criminal Defense Lawyer for Entrapment Cases in Mesa, AZ
When a person allegedly commits a crime that he or she would not have otherwise committed, it may be possible to invoke the affirmative defense of entrapment. It is critical in such cases to have experienced legal counsel for help achieving the most favorable outcome.
James Novak of The Law Office of James E. Novak is a former prosecutor in Maricopa County who understands the types of criminal charges that entrapment claims work best for. Even when entrapment might not be applicable for a certain case, he can identify many other affirmative defenses or other claims that could possibly result in criminal charges being reduced or dismissed.
The Law Office of James E. Novak represents clients charged with such crimes as drug charges, sexual offenses, property crimes, and firearm or weapon offenses. James Novak helps residents of and visitors to communities throughout Maricopa County, including Phoenix, Mesa, Tempe, Chandler, Scottsdale, and several other nearby areas.
Contact The Law Office of James Novak today at (480) 413-1499 or fill out an online contact form to take advantage of a free, confidential consultation that will let our attorney review your case and discuss all of your legal options.
- Arizona Revised Statute § 13-206
- Entrapment—Elements | USAM | Department of Justice
- FBI | Avoiding the Entrapment Defense in a Post-9/11 World
- Presenting, Back From the [Almost] Dead, the Entrapment Defense
- The Serpent Beguiled Me: A History of the Entrapment Defense
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