Ark. Code Ann. § 5-2-209 (2026)

Research References

ALR.

Entrapment to Commit Federal Crimes of Terrorism. 89 A.L.R. Fed. 2d 215 (2014).

Ark. L. Rev.

The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark. L. Rev. 430.

United States v. Jacobson: A Call for Reasonable Suspicion of Criminal Activity as a Threshold Limitation on Governmental Sting Operations, 44 Ark. L. Rev. 493.

Article, Ethical and Effective Representation in Arkansas Capital Trials, 60 Ark. L. Rev. 1.

U. Ark. Little Rock L.J.

Davis, Survey of Arkansas Law: Criminal Law, 2 U. Ark. Little Rock L.J. 193.

Case Notes

In General.

This section focuses the inquiry so as to attribute more importance to the conduct of the law enforcement officers than to any predisposition of the defendant, and the question is directed to the effect of that conduct on “normally law-abiding persons.” Webber v. State, 15 Ark. App. 261, 692 S.W.2d 255 (1985).

Entrapment is not a collateral issue. Young v. State, 308 Ark. 647, 826 S.W.2d 814 (1992).

Purpose.

The purpose of this section is to discourage government conduct that might induce innocent persons to engage in criminal conduct. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); Riddling v. State, 19 Ark. App. 231, 719 S.W.2d 1 (1986).

Admission of Crime.

In order to raise the defense of entrapment, a defendant must admit the crime. Gipson v. Lockhart, 692 F.2d 66 (8th Cir. 1982); Morris v. State, 300 Ark. 340, 779 S.W.2d 526 (1989).

When the entrapment defense is invoked it is necessarily assumed that the act charged was committed, and where a defendant insists that he did not commit the acts he is charged with, one of the bases of the entrapment defense is absent and he is not entitled to that defense. Smith v. State, 34 Ark. App. 72, 805 S.W.2d 663 (1991); Young v. State, 308 Ark. 647, 826 S.W.2d 814 (1992).

Where defendant denied having committed the act charged, he was not entitled to proceed with evidence of the defense of entrapment, and exclusion of testimony relating to officer's conduct was not error. Young v. State, 308 Ark. 647, 826 S.W.2d 814 (1992).

Trial court did not err in evoking defendant's suspended sentence on the ground that he committed the offense of possession of drug paraphernalia with the intent to manufacture methamphetamine in violation of § 5-64-403(c)(5) because the evidence showed that a reliable source had tipped off the police to the fact that defendant, contrary to the terms and conditions of his release, was continuing to manufacture methamphetamine, and defendant directed the purchases and provided an explanation for each component of the methamphetamine recipe; it was shown that defendant conceived and proposed the methamphetamine cook, buy, and sell arrangement for the manufacture and distribution of the illegal substance, and simply by asserting the defense of entrapment under this section, defendant necessarily admitted committing the offense. Lowe v. State, 2010 Ark. App. 284 (2010).

Defendant, who was convicted for internet stalking, should have been permitted to plead entrapment under this section as an affirmative defense while at the same time denying one or two elements of the crime, and therefore defendant's conviction was reversed, because the doctrine requiring a defendant to admit to all the elements of a crime in order to plead entrapment could result in punishment upon a defendant who was merely entrapped; the doctrine could possibly punish a defendant for a serious crime for merely seeking to require the state to prove its case aside from offering an affirmative defense. Smoak v. State, 2011 Ark. 529, 385 S.W.3d 257 (2011), rehearing denied, — Ark. —, — S.W.3d —, 2012 Ark. LEXIS 26 (Ark. Jan. 19, 2012).

Burden of Proof.

Entrapment must be proved by the defendant by a preponderance of the evidence. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); Rhoades v. State, 270 Ark. 962, 607 S.W.2d 76 (1980), cert. denied, Rhoades v. Arkansas, 452 U.S. 915, 101 S. Ct. 3048 (1981); Harper v. State, 7 Ark. App. 28, 643 S.W.2d 585 (1982); Walls v. State, 8 Ark. App. 315, 652 S.W.2d 37 (1983), aff'd, 280 Ark. 291, 658 S.W.2d 362 (1983); Jackson v. State, 12 Ark. App. 378, 677 S.W.2d 866 (1984); Webber v. State, 15 Ark. App. 261, 692 S.W.2d 255 (1985); Wedgeworth v. State, 301 Ark. 91, 782 S.W.2d 357 (1990); Kellogg v. State, 37 Ark. App. 162, 827 S.W.2d 166 (1992); Baker v. State, 310 Ark. 485, 837 S.W.2d 471 (1992).

The defendant has the burden of proving he was entrapped. White v. State, 298 Ark. 163, 765 S.W.2d 949 (1989).

Conduct of Law Officer.

In determining the existence of entrapment, primary importance is accorded to the conduct of a law enforcement officer, or the person acting in cooperation with him. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); Mullins v. State, 265 Ark. 811, 580 S.W.2d 941 (1979); Young v. State, 308 Ark. 647, 826 S.W.2d 814 (1992).

Conduct of a law enforcement officer or informant merely affording the accused the opportunity to do that which he is otherwise ready, willing and able to do is not entrapment. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); Webber v. State, 15 Ark. App. 261, 692 S.W.2d 255 (1985); Guinn v. State, 27 Ark. App. 260, 771 S.W.2d 290 (1989).

This section places emphasis on the conduct of the law enforcement officer or persons cooperating with him in determining whether the officer has induced the commission of the offense by persuasion or has merely afforded a person who is ready, willing and able to commit the offense the opportunity of doing so. Harper v. State, 7 Ark. App. 28, 643 S.W.2d 585 (1982); Walls v. State, 8 Ark. App. 315, 652 S.W.2d 37 (1983), aff'd, 280 Ark. 291, 658 S.W.2d 362 (1983).

This section attributes more importance to the conduct of the law enforcement officer than to any predisposition of the defendant. Riddling v. State, 19 Ark. App. 231, 719 S.W.2d 1 (1986).

Defendant's Conduct and Predisposition.

Defendant's conduct and predisposition, both prior to and concurrent with, the transactions forming the basis of the charges are still material and relevant, on the question whether the government agents only afforded the opportunity to commit the offenses with which he is charged. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); White v. State, 298 Ark. 163, 765 S.W.2d 949 (1989).

The defendant's conduct and predisposition both prior to and concurrent with the transaction are material and relevant on the question of whether the accused was only afforded the opportunity to commit the offenses. Harper v. State, 7 Ark. App. 28, 643 S.W.2d 585 (1982).

Entrapment does not occur when government agents merely afford one the opportunity to do that which he already has a predisposition to do. Jackson v. State, 12 Ark. App. 378, 677 S.W.2d 866 (1984); White v. State, 298 Ark. 163, 765 S.W.2d 949 (1989).

Entrapment instruction not given in a drug possession case where package delivery service and police officers provided defendant the opportunity to commit the crime, but did not induce or persuade him to commit the crime. Heritage v. State, 326 Ark. 839, 936 S.W.2d 499 (1996).

Elements of Defense.

“Unconscious commission” of an unlawful act is not an element in the defense of entrapment. French v. State, 260 Ark. 473, 541 S.W.2d 680 (1976).

Circuit court did not err in rejecting criminal defendant's proffered instruction on the defense of entrapment where co-defendant waived the defense prior to trial. Montgomery v. State, 367 Ark. 485, 241 S.W.3d 753 (2006).

Evidence.

Exclusion of evidence of law officer's conduct held to be error. French v. State, 260 Ark. 473, 541 S.W.2d 680 (1976); Brascomb v. State, 261 Ark. 614, 550 S.W.2d 450 (1977).

The accused should be allowed a reasonable latitude in presenting whatever facts and circumstances he claims constitute an entrapment subject to ordinary rules of admissibility. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); Young v. State, 308 Ark. 647, 826 S.W.2d 814 (1992).

Any evidence having any tendency to make the existence of entrapment more probable is admissible. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); Young v. State, 308 Ark. 647, 826 S.W.2d 814 (1992).

Any statement made by informant, or in the presence of defendant, indicative of the fact that informant was using persuasion or other means to induce a normally law-abiding person to commit an offense was admissible, not to show the truth of informant's statements, but to show that they were made. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978).

Testimony was relevant and not inadmissible as hearsay since it showed the informant's intent, plan, motive or design. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978).

Evidence insufficient to establish entrapment. Rhoades v. State, 270 Ark. 962, 607 S.W.2d 76 (1980), cert. denied, Rhoades v. Arkansas, 452 U.S. 915, 101 S. Ct. 3048 (1981); Womack v. State, 301 Ark. 193, 783 S.W.2d 33 (1990).

Evidence of other acts or crimes is usually admissible in rebuttal to the defense of entrapment. Jackson v. State, 12 Ark. App. 378, 677 S.W.2d 866 (1984).

The trial court erred in excluding evidence of events that occurred after the transaction when the defendant sold the cocaine to the undercover agent where this evidence would help establish his defense of entrapment by showing that the law enforcement officers desired to have him help them catch “bigger fish,” and when he refused to help them in this regard, he was prosecuted for the transaction. Riddling v. State, 19 Ark. App. 231, 719 S.W.2d 1 (1986).

Where there was evidence of entrapment in the state's evidence-in-chief, a video tape of a meeting between a police informant and the defendant was inadmissible in the state's case-in-chief to show the defendant's predisposition to sell a controlled substance. Riddling v. State, 19 Ark. App. 231, 719 S.W.2d 1 (1986).

The trial court was incorrect in ruling that the defense should not refer to the word entrapment during the trial because entrapment had not been pled, in light of the fact the state acknowledged that it had been put on notice that the defense would be raised. Sumner v. State, 35 Ark. App. 203, 816 S.W.2d 623 (1991).

Court's ruling that defense could not present evidence on entrapment because it had not been pled was harmless error since defendant was permitted to put on his evidence relating to his theory of entrapment and because the trial court was correct in declining to instruct the jury on the defense because there was no evidence to support it. Sumner v. State, 35 Ark. App. 203, 816 S.W.2d 623 (1991).

Where there was evidence that informant was paid for his efforts, but there was no additional evidence tending to show that informant induced defendant into committing the offense, the trial court properly refused to instruct the jury on entrapment. Kellogg v. State, 37 Ark. App. 162, 827 S.W.2d 166 (1992).

Where defendant, having the burden of proof, failed to present any evidence to indicate that he was induced by governmental conduct of a character likely to cause a normally law-abiding person to commit the offense, of which he had been convicted, it was not error for the trial court to refuse to give defendant's proposed instruction on entrapment. Baker v. State, 310 Ark. 485, 837 S.W.2d 471 (1992).

Denial of appellant's, an inmate's, petition for writ of certiorari was improper because the evidence at issue presented a jury question concerning whether the informant had induced the commission of the offense, and the jury was given an instruction on the affirmative defense of entrapment. Thus, the inmate failed to prove that he received the ineffective assistance of counsel. Lowe v. State, 2012 Ark. 185, 423 S.W.3d 6 (2012).

Defendant could not demonstrate any prejudice from the trial court's order granting the State's motion to prohibit him from attacking the credibility of a criminal informant because the jury heard, through the informant's own testimony, that the informant had an extensive criminal history; although it could make a would-be criminal more likely to trust an informant who had a reputation, that was not the same thing as inducing one to act through persuasion. Owens v. State, 2017 Ark. App. 109, 515 S.W.3d 625 (2017).

Failure to Raise.

Trial court did not err in denying postconviction relief where appellant contended that trial counsel was ineffective for failing to raise a defense of entrapment and for not having the jury instructed on that defense; counsel explained her reasons for not pursuing an inconsistent defense to what she believed was a relatively strong innocence defense, and even if appellant was entitled to an instruction on entrapment, counsel was not ineffective simply for failing to request it. Flemons v. State, 2016 Ark. 460, 505 S.W.3d 196 (2016).

Question of Law or Fact.

Where the evidence was in conflict on the question of entrapment, it presented a question of fact for the trial court as to whether defendant had carried his burden of proof. Leeper v. State, 264 Ark. 298, 571 S.W.2d 580 (1978).

Ordinarily, entrapment is a fact question which is properly submitted to the jury, and entrapment as a matter of law is only established if there is no factual issue to be resolved. Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983); White v. State, 298 Ark. 163, 765 S.W.2d 949 (1989); Wedgeworth v. State, 301 Ark. 91, 782 S.W.2d 357 (1990).

Entrapment is ordinarily a fact question. Riddling v. State, 19 Ark. App. 231, 719 S.W.2d 1 (1986).

Entrapment is not required to be found as a matter of law when the testimony of the accused, showing entrapment, is not rebutted by evidence presented by the state. McCaslin v. State, 298 Ark. 335, 767 S.W.2d 306 (1989).

There was no basis for finding entrapment as a matter of law because factual issues clearly had to be resolved in deciding the issue where informant testified that he never threatened defendant by saying he would notify the press of defendant's drug abuse and defendant testified that informant did make such a threat. Elders v. State, 321 Ark. 60, 900 S.W.2d 170 (1995).

Trial court did not err in denying defendant's motions for a directed verdict on the ground of entrapment where there were factual issues to be decided by the jury as to whether the conduct of law enforcement would have caused a law-abiding citizen to commit internet stalking of a child. Squyres v. State, 2015 Ark. App. 665, 476 S.W.3d 839 (2015).

Cited: Hill v. State, 33 Ark. App. 135, 803 S.W.2d 935 (1991).