CRIMINAL LAW

SECTION 1 - COLQUITT

FALL, 2002

ALA. CODE § 13A-3-31 - Entrapment

The Alabama Criminal Code adopts the present case law on entrapment.

COMMENTARY

The Criminal Code's original section on entrapment as a defense was patterned primarily after the Proposed Federal Code § 702, Michigan Revised Criminal Code § 640, New York Revised Penal Law § 35.40, and the Proposed Revision Texas Penal Code § 8.05. It corresponded to the basic theory applied in the federal courts. See United States v. Russell, 411 U.S. 423 (1973); Sherman v. United States, 356 U.S. 369 (1958); and Sorrells v. United States, 287 U.S. 435 (1932). Former § 13A-3-31 provided that "Entrapment occurs when a law enforcement agent induces the commission of an offense, in order to obtain evidence for the purpose of criminal prosecution, by methods creating a substantial risk that the offense would be committed by one not otherwise disposed to commit it." (Acts 1977, No. 607, § 650). As such, the section was deemed to differ from Alabama's case law on entrapment because it focused on whether the method of inducement created a substantial risk that the offense would be committed, and the actor's prior criminal record and predisposition to crime were not relevant and not admissible when considering entrapment.

In 1979 the legislature repealed the above codified "federal" view and reinstated the "present case law on entrapment," whereby the test is whether the criminal intent originated in the mind of the defendant. Johnson v. State, 285 So. 2d 723, 291 Ala. 639 (1973); Tyson v. State (Ala. Crim. App.), 361 So. 2d 1182 (1978). Thus, entrapment has not been allowed when the prosecution can show that the defendant had a predisposition or prior intent to commit the crime.

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