Denying the Crime and Pleading Entrapment: Putting the Federal Law in Order

The federal law of procedure in entrapment cases is in profound disarray. Despite four attempts over the past fifty years to clarify the law of pleadings in entrapment cases, the Supreme Court has yet to do so successfully. This Note focuses on these attempts, and analyzes the issue of whether to permit a defendant to plead entrapment while simultaneously denying the crime charged.

Part I reviews the historical development of the entrapment defense, the disagreement among the federal circuits with regard to alternative inconsistent defenses, and the arguments commentators have made for and against allowing alternative inconsistent defenses in entrapment cases. Part II illustrates the importance and outcome-determinative nature of this procedural issue through an analysis of the John Z. DeLorean trial. Part III then reviews the theoretical justifications for entrapment-the so-called subjective and objective approaches to entrapment. Finally, Part IV demonstrates that allowing a defendant to plead alternative inconsistent defenses logically follows from both of these theoretical justifications for entrapment.