(a) It is an affirmative defense that the defendant committed the offense in response to an entrapment, except as provided in Subsection (c). (b) Entrapment occurs when a law enforcement agent, for the purpose of obtaining evidence of the commission of an offense, induces or encourages a person to engage in proscribed conduct, using such methods of inducement as to create a substantial risk that the offense would be committed by persons other than those who are ready to commit it. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment. (c) The defense afforded by this Section is unavailable when causing or threatening serious bodily injury is an element of the offense charged and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment. (d) As used in this Section, law enforcement agent includes personnel of federal and Guam law enforcement agencies, and any person cooperating with such an agency. (e) The issue of entrapment shall be tried by the trier of fact. SOURCE: M.P.C. § 2.13; Cal. § 550 (T.D.1 1967); Cal. § 565 (1971); *Mass. ch. 263, § 44; N.J. § 2C:2-12. Subsection (e) amended by P.L. 19-005:133 (Aug. 21, 1987). CROSS-REFERENCES: 8 GCA § 160.40. COMMENT: § 7.70 perhaps limits the defense of entrapment developed under case law, and particularly under case law of Guam. The Commission, however, believes that the substantive defense and the procedural safeguards provided here adequately satisfy the basic policy to deter wrongful conduct on the part of the Government. Subsection (b) defines and limits entrapment to that conduct by law enforcement agents which induces or encourages a person to commit the crime when a person so induced or encouraged was not a sort “who is ready to commit.” Entrapment is not available to persons who cause or threatened serious bodily injury and the person harmed or threatened is not the person perpetrating the entrapment. Causing or threatening bodily injury is a sufficiently serious crime that there should be no reason that a person committing it should escape the consequences. For a police officer to pretend he is not a police officer in certain circumstances (drug buys) might, by some, be considered “Entrapment” or at least misrepresentation. This Section, however, would clearly not prohibit such police conduct. Note that a law enforcement agent includes not only personnel of a law enforcement agency, but any person cooperating with that agency. Thus, informers could be the subject of an entrapment defense. Also, important case law is overruled by this Subsection in that federal law enforcement officials are included within its scope. Previously, evidence obtained by federal officials would have been admissible in a territorial court without defense. Entrapment now applies regardless of who, federal or local, was involved. COURT DECISIONS: D.C. GUAM, App. Div., 1978. Under former Penal Code, the Court approved of CAL-JIC § 4.60 as proper instruction for entrapment even without additional instruction CAL-JIC § 4.61 dealing with whether furnishing the opportunity to commit a crime is entrapment. Flores v. People, Cr. App. #76-003A.
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