Legal Definitions - hypothetical-person defense

The hypothetical-person defense is a specific type of entrapment defense used in criminal law. It argues that law enforcement's actions were so coercive or misleading that they would have caused an ordinarily law-abiding person to commit a crime, regardless of whether the specific defendant was already inclined to do so. This defense focuses on the conduct of the police rather than the defendant's predisposition.

It can be raised if an undercover officer (or someone working under their direction) either:

• Misrepresented the legality of an act, making the defendant genuinely believe it was not a crime; or
• Used such extreme persuasive tactics that they created a significant risk that someone not already inclined to commit the offense would do so.

This approach, sometimes called the objective method, is adopted by a minority of U.S. states and the Model Penal Code.

Here are some examples illustrating the hypothetical-person defense:

• Example 1: Misrepresentation of Legality
  An undercover police officer approaches a struggling artist and repeatedly encourages them to sell unique sculptures, claiming they are made from "recycled materials" and are perfectly legal to sell without permits. In reality, the sculptures contain rare, protected animal parts, making their sale illegal. The artist, believing the officer's assurances, begins selling them. The defense would argue that the officer's false representation about the legality of the "recycled materials" would convince an otherwise law-abiding person (the hypothetical person) to engage in the illegal trade, creating the crime rather than merely detecting it.

• Example 2: Overly Persuasive Tactics
  A retired, elderly individual with no prior criminal record is repeatedly contacted by an undercover agent who offers them a large sum of money to store a package for a few days. The agent emphasizes the individual's financial struggles, appeals to their sense of charity, and persistently pressures them over several weeks, even after initial refusals. The package is later revealed to contain illegal contraband. The defense would contend that the agent's relentless pressure, financial inducements, and emotional manipulation were so extreme that they would likely induce an *unwilling* person (the hypothetical person) to commit the crime, rather than simply catching someone already predisposed to criminal activity.

• Example 3: Creating an Opportunity for the Uninclined
  An undercover police unit creates a sophisticated fake website advertising "exclusive, limited-edition designer goods" at unbelievably low prices. They then send targeted emails to individuals with no history of buying counterfeit items, promising huge profits if they resell these "authentic" goods. The goods are, in fact, counterfeit. The defense would argue that the police created an artificial environment and used tactics designed to lure in individuals who were not predisposed to dealing in counterfeit goods. The argument is that the police's actions, rather than the defendant's existing criminal intent, were the primary cause of the crime for a "hypothetical person."