SERIES 3400 DEFENSES AND INSANITY
F 3408 Entrapment
TABLE OF CONTENTS
F 3408 Inst 1 Entrapment: Preponderance Is Lesser Standard
F 3408 Inst 2 Entrapment: Examples Are Not Exclusive
F 3408 Inst 3 Entrapment: Deletion Of Duplicative, Irrelevant And Argumentative Language
F 3408 Inst 4 (a & b) Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
F 3408 Inst 5 Entrapment: Considerations Are Not Exclusive
F 3408 Inst 6 Entrapment: Jury Not Required To Decide
F 3408 Inst 7 Jurors Must Unanimously Reject Any Defenses Before Convicting
Return to Series 3400 Table of Contents.
F 3408 Inst 1 Entrapment: Preponderance Is Lesser Standard
*Modify CC 3408, paragraph 1, sentence 2, as follows [added language is underlined; deleted language is stricken]:
This is a different lesser standard from proof beyond a reasonable doubt.
Points and Authorities
See FORECITE F 418.4 Inst 5.
F 3408 Inst 2 Entrapment: Examples Are Not Exclusive
*Modify CC 3408, paragraph 3, as follows [added language is underlined]:
Some examples of entrapment might include, but are not limited to, conduct like badgering, persuasion by flattery or coaxing, repeated and insistent requests, or an appeal to friendship or sympathy.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—It is crucial that the jury understand that entrapment may be based on conduct other than the specific examples given in the instruction. (See generally FORECITE F 105.2 Inst 2.)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
FORECITE CG 7.2 [Jury’s Duty To Fully And Fairly Apply The Law]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 3408 Inst 3 Entrapment: Deletion Of Duplicative, Irrelevant And Argumentative Language
*Delete CC 3408, paragraph 5:
If an officer [or (his/her) agent] simply gave the defendant an opportunity to commit the crime or merely tried to gain the defendant’s confidence through reasonable and restrained steps, that conduct is not entrapment.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—Assuming the jurors are correctly instructed on what must be found for entrapment, it is duplicative, irrelevant and argumentative to instruct on conduct that is not entrapment. (See FORECITE F 416.3 Inst 4.)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.4.1 [Instructions That Suggest An Opinion As To An Essential Fact, An Element Or Guilt]
FORECITE CG 5.4.2 [Argumentative Instructions Not Suggesting Opinion On Guilt]
FORECITE CG 5.4.3 [Undue Emphasis Of Specific Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 3408 Inst 4 (a & b) Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
*Add after CC 3408, paragraph 5:
Alternative a [fact not disputed]:
However, the fact that the officer gave the defendant an opportunity to commit the crime and tried to gain the defendant’s confidence are circumstances to consider in evaluating whether the defendant was entrapped.
Alternative b [fact disputed]:
However, whether or not the officer gave the defendant an opportunity to commit the crime and tried to gain the defendant’s confidence are circumstances to consider in evaluating whether the defendant was entrapped.
Points and Authorities
See FORECITE F 416.3 Inst 7.
F 3408 Inst 5 Entrapment: Considerations Are Not Exclusive
*Modify CC 3408, paragraph 6, sentence 2, as follows [added language is underlined]:
However, in deciding whether the officer’s conduct was likely to cause a normally law-abiding person to commit this crime, also consider other relevant circumstances, including, but not limited to, events that happened before the crime, the defendant’s responses to the officer’s urging, the seriousness of the crime, and how difficult it would have been for law enforcement officers to discover that the crime had been committed.
Points and Authorities
See FORECITE F 105.2 Inst 2.
F 3408 Inst 6 Entrapment: Jury Not Required To Decide
*Modify CC 3409 paragraph 7, sentence 1, as follows [added language is underlined]:
When deciding, if you can, whether the defendant was entrapped, consider what a normally law-abiding person would have done in this situation.
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 3408 Inst 7 Jurors Must Unanimously Reject Any Defenses Before Convicting
See FORECITE F 3500.2 Inst 4.
