Who Has the Burden of Proof In Entrapment Cases ?
In Munoz v. State, 629 So. 2d 90 (Fla. 1993), the Court analyzed Florida's entrapment statute, section 777.201, Florida Statutes, the current version 1 of which provides:
(1) a law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he or she induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.
(2) a person prosecuted for a crime shall be acquitted if the person proves by a preponderance of the evidence that his or her criminal conduct occurred as a result of an entrapment.
The issue of entrapment shall be tried by the trier of fact. 777.201, Fla. Stat. (1999).
After tracing the development of the entrapment defense under both federal and Florida law, see 629 So. 2d at 91-98, this Court found that the Florida Legislature, by enacting section 777.201, had "codified the subjective test of entrapment delineated by the United States Supreme Court as the means for determining the application of that defense." Id. at 99.
This Court then explained the various burdens of proof involved in the subjective test for entrapment delineated by the United States Supreme Court:
As indicated under the federal cases discussed above, the application of the subjective test is the test articulated by Judge Hand in United States v. Sherman, 200 F.2d 880, 882-83 (2d Cir. 1952), as further explained by the United States Supreme Court in United States v. Jacobson. Three principles arise under this test.
The first two involve questions of fact and differing burdens of proof . . . .
The first question to be addressed under the subjective test is whether an agent of the government induced the accused to commit the offense charged.
On this issue, the accused has the burden of proof and, pursuant to section 777.201, must establish this factor by a preponderance of the evidence.
If the first question is answered affirmatively, then a second question arises as to whether the accused was predisposed to commit the offense charged; that is, whether the accused was awaiting any propitious opportunity or was ready and willing, without persuasion, to commit the offense.
On this second question, according to our decision in Herrera, the defendant initially has the burden to establish lack of predisposition.
However, as soon as the defendant produces evidence of no predisposition, the burden then shifts to the prosecution to rebut this evidence beyond a reasonable doubt. Munoz, 629 So. 2d at 99.