STATUTORY ADOPTION OF THE OBJECTIVE TEST FOR ENTRAPMENT AS A SOLUTION TO DUBIOUS TACTICS IN FEDERAL TERRORISM INVESTIGATIONS

Federal investigators and their informants frequently utilize questionable tactics which resemble entrapment in terrorism investigations. Despite the use of such tactics, entrapment has universally failed as an affirmative defense in federal terrorism cases. This is largely as a result of the subjective test for entrapment employed in federal courts which does not allow for a finding of entrapment if the defendant is found to be predisposed to commit the particular offense. This is especially damning for defendants in terrorism cases as they are frequently proponents of fringe political and religious ideologies or mentally ill which easily establishes predisposition for a jury of ordinary citizens. This paper argues that, in response to the dubious tactics of federal terrorism investigators, the federal legislature should replace the subjective test with the objective test for entrapment which does not consider predisposition but considers only whether the government’s conduct created a substantial risk that an ordinary person would commit the offense