Identify the difference between the subjective and objective tests of entrapment.

The subjective version of the defense has a two-part structure. In most courts employing the subjective version, a defendant wishing to assert entrapment must first establish by a preponderance of the evidence that a government agent “induced” him to commit the crime he is charged with. If he is unsuccessful, the defense fails. If the defendant is successful in carrying this burden of proof, the burden shifts to the government to prove beyond a reasonable doubt that the defendant was “predisposed” to commit the crime. If the government carries its burden of proof demonstrating predisposition, the defense fails. However, if at this point the government fails to prove beyond a reasonable doubt that the induced defendant was predisposed, the defense succeeds and the defendant is acquitted on the ground of entrapment. Other states, including some of the largest, such as California, Texas, and Michigan, use the so-called objective test. These jurisdictions reject the position of the subjective test proponents as to the legislative intent. Instead, the theory here is that the entrapment defense was created in order to impose responsible limitations on the actions of government agents in investigating and prosecuting criminal behavior. With this test, the courts scrutinize the level of government involvement in the criminal actions to determine if the officers acted in such a way that they would, in a usual case, affirmatively create crime where none would have existed without their actions. The individual state of mind of the defendant is not material in these states, hence the term objective is used.

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