Due Process: Confessions and Entrapment

Chapter 18

Due Process: Confessions and Entrapment

Police practices prior to the twentieth century traded significantly upon tactics of intimidation and violence. Such tactics relate back to early English police methods that freely used torture and brutality to obtain confessions. Until the late eighteenth century, such statements were admissible at trial. By then, the law reflected concern that confessions elicited by force or promises were unreliable and thus inadmissible. American courts generally embraced the premise that manipulation of a suspect’s fears or hopes compromised the reliability and voluntariness of a confession. This understanding is reflected in interpretations of the Fifth Amendment privilege against self-incrimination that make coerced confessions inadmissible at trial on constitutional grounds. Even as physical means of extracting confessions faded as an investigative practice, psychological pressure continued to be employed as a method for overcoming a suspect’s will.

In Miranda v. Arizona (1966), the Supreme Court formulated rules designed to overcome the inherently coercive nature of police interrogation. Pursuant to Miranda, custodial interrogation must be preceded by warnings that the person has the right to remain silent, any information elicited may be used against him or her, he or she has the right to an attorney, and counsel will be provided if he or she is indigent. Although Miranda aimed toward preempting coercive interrogation procedures, it does not speak to circumstances in which these methods are employed and confessions are coerced. In Mincey v. Arizona (1978), the Court reaffirmed that due process precludes admission of a confession obtained under duress. Due process also was the basis for the Court’s conclusion, in Jacobson v. United States (1992), that entrapment provided a defense against criminal prosecution.

Two more recent cases have limited Miranda’s reach. In Berghuis v. Thompkins (2010), the Court addressed the issue of when a suspect can properly waive his Miranda rights. While the Court acknowledged that such a waiver must be knowing and intelligent, it held that a waiver satisfied this requirement even in cases where the suspect (who had been given a copy of his Miranda rights) remained silent for three hours before uttering a one word incriminating response. In Salinas v. Texas (2013), the Court concluded that the Fifth Amendment’s privilege against self-incrimination does not extend to defendants who decide to remain silent during noncustodial questioning. The Court pointed out that numerous cases have held that any witness who desires protection against self-incrimination must explicitly claim that protection.

Mincey v. Arizona

Citation: 437 U.S. 385.

Issue: Whether a confession obtained under physical duress violates due process.

Year of Decision: 1978.

Outcome: Defendants cannot be convicted based on confessions that were elicited under physical and mental duress.

Author of Opinion: Justice Potter Stewart.

Vote: 8-1.

During medieval times, some criminal suspects were subjected to torture, including the rack and torture chamber, until they confessed. Over time, public attitudes rebelled against torture and prohibited the government from compelling criminal defendants to confess. In the United States Constitution, torture techniques are prohibited by both the privilege against self-incrimination and the Due Process Clause. The latter clause protects defendants against deprivations of life, liberty, or property without due process of law. A central component of the Due Process Clause is the idea that convictions should not be based on evidence that has been obtained fraudulently or by means that render the evidence “unreliable.” That includes the admission of confessions that have been compelled. Such evidence is “unreliable” and cannot provide the basis for a valid conviction.

In the United States Supreme Court’s landmark decision in Brown v. Mississippi (1936), the Court held that the constitutional requirement of due process protects defendants against compelled confessions. In Brown, confessions were obtained from several African American men, but the confessions were later determined to be false. The police interrogated one defendant by hanging him by a rope around his neck, and they interrogated the remaining defendants while whipping them. All were subjected to “intense pain and agony.” A day or two later, the defendant was arrested, “severely whipped,” and told that the whipping would continue “until he confessed.” He confessed. Two other defendants were arrested and taken to jail. The same sheriff, accompanied by others, made the defendants strip, “and they were laid over chairs and their backs were cut to pieces with a leather strap with buckles on it.” They were told that the whipping would continue until they confessed. These defendants confessed, too, and “changed or adjusted their confession in all particulars of detail so as to conform to the demands of their torturers.” At trial, the sheriff admitted the whippings, as did other witnesses.

In Brown, the Court held that admission of the confessions violated due process. The Court noted that, while the state is free to establish its own criminal procedure rules, those rules must conform to the requirements of due process. In addition, the “rack and torture chamber may not be substituted for the witness stand. And the trial equally is a mere pretense where the state authorities have contrived a conviction resting solely upon confessions obtained by violence.” The Court concluded that the police action in this case violated due process: “It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process.”

Mincey involves a modern application of the prohibition against interrogation through torture. In this case, Mincey exchanged gunfire with officers entering his house to arrest him for narcotics crimes. An officer died in the shootout, and Mincey was wounded. Mincey was taken to the hospital and placed in intensive care. Around 8:00 pm that evening, a detective gave Mincey a Miranda warning, told him that he was under arrest, and sought to interrogate him. Since Mincey could not talk because of a tube in his mouth, he wrote answers to the detective’s questions. The interrogation lasted for four hours and produced incriminating statements. At his trial, Mincey argued that the statements should be excluded as “involuntary.”

The Court concluded that Mincey was in serious physical shape at the time of the interrogation. He was seriously wounded and arrived at the hospital “depressed almost to the point of coma.” In addition, he complained that he was suffering “unbearable” leg pain, and some of his written answers were not “entirely coherent.” Finally, Mincey was interrogated while “lying on his back on a hospital bed, encumbered by tubes, needles, and breathing apparatus.” In the Court’s view, not only was he unable to leave, he was at “the complete mercy” of the interrogating detective. Moreover, even though Mincey asked the detective not to interrogate him, the interrogation continued, and the detective ignored Mincey’s repeated requests for a lawyer. The interrogation ceased only when Mincey lost consciousness or received medical treatment and then resumed.

The Court concluded that Mincey’s statements were involuntary: “Mincey was weakened by pain and shock, isolated from family, friends, and legal counsel, and barely conscious, and his will was simply overborne.” The Court concluded that “[d]ue process of law requires that statements obtained as these were cannot be used in any way against a defendant at his trial.”

Justice William Rehnquist dissented, arguing that the Court ignored evidence of voluntariness. He argued that Mincey had not received medication, that he was “alert and able to understand the officer’s questions,” and that he was “very cooperative with everyone.”

Mincey is an important ruling because it reaffirms prior decisions applying due process analysis to confessions. In general, it is fairly difficult for a defendant to prevail in a due process challenge. Nevertheless, as Mincey suggests, when a criminal defendant is interrogated under outrageous circumstances suggesting that his confession was involuntarily obtained, due process principles will require exclusion of the confession from evidence.


Mr. Justice STEWART delivered the opinion of the Court.

. . . Statements made by a defendant in circumstances violating the strictures of Miranda v. Arizona, supra, are admissible for impeachment if their “trustworthiness . . . satisfies legal standards.” But any criminal trial use against a defendant of his involuntary statement is a denial of due process of law, “even though there is ample evidence aside from the confession to support the conviction.” If therefore, Mincey’s statements to Detective Hust were not “ ‘the product of a rational intellect and a free will ,’ ” his conviction cannot stand. In making this critical determination, we are not bound by the Arizona Supreme Court’s holding that the statements were voluntary. Instead, this Court is under a duty to make an independent evaluation of the record.

It is hard to imagine a situation less conducive to the exercise of “a rational intellect and a free will” than Mincey’s. He had been seriously wounded just a few hours earlier, and had arrived at the hospital “depressed almost to the point of coma,” according to his attending physician. Although he had received some treatment, his condition at the time of Hust’s interrogation was still sufficiently serious that he was in the intensive care unit. He complained to Hust that the pain in his leg was “unbearable.” He was evidently confused and unable to think clearly about either the events of that afternoon or the circumstances of his interrogation, since some of his written answers were on their face not entirely coherent. Finally, while Mincey was being questioned he was lying on his back on a hospital bed, encumbered by tubes, needles, and breathing apparatus. He was, in short, “at the complete mercy” of Detective Hust, unable to escape or resist the thrust of Hust’s interrogation.

In this debilitated and helpless condition, Mincey clearly expressed his wish not to be interrogated. As soon as Hust’s questions turned to the details of the afternoon’s events, Mincey wrote: “This is all I can say without a lawyer.” Hust nonetheless continued to question him, and a nurse who was present suggested it would be best if Mincey answered. Mincey gave unresponsive or uninformative answers to several more questions, and then said again that he did not want to talk without a lawyer. Hust ignored that request and another made immediately thereafter. Indeed, throughout the interrogation Mincey vainly asked Hust to desist. Moreover, he complained several times that he was confused or unable to think clearly, or that he could answer more accurately the next day. But despite Mincey’s entreaties to be let alone, Hust ceased the interrogation only during intervals when Mincey lost consciousness or received medical treatment, and after each such interruption returned relentlessly to his task. The statements at issue were thus the result of virtually continuous questioning of a seriously and painfully wounded man on the edge of consciousness.

There were not present in this case some of the gross abuses that have led the Court in other cases to find confessions involuntary, such as beatings, or “truth serums.” But “the blood of the accused is not the only hallmark of an unconstitutional inquisition.” Determination of whether a statement is involuntary “requires more than a mere color-matching of cases.” It requires careful evaluation of all the circumstances of the interrogation.

It is apparent from the record in this case that Mincey’s statements were not “the product of his free and rational choice.” To the contrary, the undisputed evidence makes clear that Mincey wanted not to answer Detective Hust. But Mincey was weakened by pain and shock, isolated from family, friends, and legal counsel, and barely conscious, and his will was simply overborne. Due process of law requires that statements obtained as these were cannot be used in any way against a defendant at his trial. . . .

Mr. Justice REHNQUIST, concurring in part and dissenting in part.

. . . As the Arizona Supreme Court observed in affirming the trial court’s finding of voluntariness, Mincey’s nurse “testified that she had not given [Mincey] any medication and that [he] was alert and able to understand the officer’s questions. . . . She said that [Mincey] was in moderate pain but was very cooperative with everyone. The interrogating officer also testified that [Mincey] did not appear to be under the influence of drugs and that [his] answers were generally responsive to the questions.”

The uncontradicted testimony of Detective Hust also reveals a questioning that was far from “relentless.” While the interviews took place over a three-hour time span, the interviews were not “very long; probably not more than an hour total for everything.” Hust would leave the room whenever Mincey received medical treatment “or if it looked like he was getting a little bit exhausted.” According to Detective Hust, Mincey never “los[t] consciousness at any time.”

As the Court openly concedes, there were in this case none of the “gross abuses that have led the Court in other cases to find confessions involuntary, such as beatings . . . or ‘truth serums.’ ” Neither is this a case, however, where the defendant’s will was “simply overborne” by “mental coercion.” As the Supreme Court of Arizona observed, it was the testimony of both Detective Hust and Nurse Graham “that neither mental or physical force nor abuse was used on [Mincey]. . . . Nor were any promises made.” According to Mincey’s own testimony, he wanted to help Hust “the best I could” and tried to answer each question “to the best of my recollection at the time that this was going on.” Mincey did not claim that he felt compelled by Detective Hust to answer the questions propounded.

By all of these standards enunciated in our previous cases, I think the Court today goes too far in substituting its own judgment for the judgment of a trial court and the highest court of a State, both of which decided these disputed issues differently than does this Court, and both of which were a good deal closer to the factual occurrences than is this Court. Admittedly we may not abdicate our duty to decide questions of constitutional law under the guise of wholly remitting to state courts the function of factfinding which is a necessary ingredient of the process of constitutional decision. But the authorities previously cited likewise counsel us against going to the other extreme, and attempting to extract from a cold record bits and pieces of evidence which we then treat as the “facts” of the case. I believe that the trial court was entitled to conclude that, notwithstanding Mincey’s medical condition, his statements in the intensive care unit were admissible. The fact that the same court might have been equally entitled to reach the opposite conclusion does not justify this Court’s adopting the opposite conclusion. . . .


Alschuler, Albert W. “Constraint Confession, Symposium on Coercion: An Interdisciplinary Examination of Coercion, Exploitation and the Law.” Denver University Law Review 74 (1997): 957.

Berger, Mark. Taking the Fifth. Lexington, MA: Lexington Books, 1980.

Helmholz, R. H., Charles M. Gray, John H. Langbein, Eben Moglen, Henry E. Smith, and Albert W. Alschuler. The Privilege Against Self-Incrimination. Chicago: University of Chicago Press, 1997.

Jacobson v. United States

Citation: 503 U.S. 540.

Issue: Whether Jacobson, who was repeatedly solicited by governmental agents to purchase child pornography, was entrapped.

Year of Decision: 1992.

Outcome: Jacobson’s conviction should be reversed because of entrapment.

Author of Opinion: Justice Byron White.

Vote: 5-4.

The Bill of Rights includes various rights that protect the citizenry against governmental misuse of power. Although issues of governmental abuse can arise in a variety of contexts, it often comes up in the context of whether the government may itself engage in criminal conduct in an effort to trap criminals. In Sherman v. United States (1958), the Court recognized the entrapment defense but placed it on a statutory rather than a constitutional footing. In Sherman, a government informer repeatedly encouraged a recovering narcotics addict to purchase illegal drugs for him. When the addict finally succumbed to the pressure, the Court concluded that he had been “entrapped.” Because he was in treatment, and resisted the informer’s encouragement to purchase drugs, the Court concluded that Sherman was not “predisposed” to commit the crime. Referencing a prior decision in Sorrells v. United States (1932), the Court held that the “function of law enforcement is the prevention of crime and the apprehension of criminals” and “does not include the manufacturing of crime.” The Court indicated that the police were free to employ both “stealth and strategy” in trying to ferret out crime, but that a “different question is presented when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” The Sherman test is regarded as the “subjective” approach to entrapment because it focuses on whether the defendant was “predisposed” to commit the crime.

Justice Felix Frankfurter agreed with the result in the case, but argued for an “objective” approach to entrapment. In his view, the courts should focus on whether “the methods employed on behalf of the Government to bring about conviction” are so objectionable that they “cannot be countenanced.” This objective approach would analyze whether the government’s conduct falls “below standards, to which common feelings respond, for the proper use of governmental power.” In other words, Justice Frankfurter would not inquire regarding the defendant’s past record, his predisposition to commit crime, “or the depths to which he has sunk in the estimation of society” that predisposed him to commit this particular crime. Instead, Justice Frankfurter would focus on police methods and ask whether those tactics should not “be tolerated by an advanced society.” He argued that “if two suspects have been solicited at the same time in the same manner, one should not go to jail simply because he has been convicted before and is said to have a criminal disposition.”

Even though Sorrells and Sherman recognized the entrapment defense, it was very difficult for subsequent criminal defendants to prevail using that defense. Many targets of police activity were actively engaged in the criminal activity and therefore were regarded as “predisposed” to commit the crime. As a result, as to them, the entrapment defense was unavailing.

Jacobson involved extraordinary facts and important questions regarding whether Jacobson was “predisposed” to order child pornography. Jacobson, a 56-year-old veteran and a Nebraska farmer, had previously ordered two magazines and a brochure from a California adult bookstore in 1984. The magazines were titled Bare Boys I and Bare Boys II and contained photographs of nude preteen and teenage boys. Jacobson claimed that he had expected to receive magazines with “young men 18 years or older.” Regardless, the boys in the magazines were not depicted as engaged in sexual activity, and possession of the magazines was legal at the time.

After the adoption of a federal law making possession of such magazines illegal, postal inspectors found Jacobson’s name at the bookstore that had mailed him the magazines. Over the following two and one-half years, undercover government agents repeatedly wrote to Jacobson testing his willingness to order (now illegal) sexually explicit child photographs through the mail. The government used a variety of fictitious identities. Agents portrayed themselves as the fictitious “American Hedonist Society,” a group that claimed that citizens had the “right to read what we desire, the right to discuss similar interests with those who share our philosophy, and finally that we have the right to seek pleasure without restrictions being placed on us by outdated puritan morality.” Jacobson joined the Society and returned a sexual attitudes questionnaire in which he stated that he liked seeing “pre-teen sex,” but was opposed to pedophilia. The government also represented itself as a consumer research company, “Midlands Data Research,” looking for those who “believe in the joys of sex and the complete awareness of those lusty and youthful lads and lasses of the neophite [sic] age.” The petitioner replied: “Please feel free to send me more information, I am interested in teenage sexuality. Please keep my name confidential.” The government also contacted Jacobson through the fictitious “Heartland Institute for a New Tomorrow” (HINT), which depicted itself as “an organization founded to protect and promote sexual freedom and freedom of choice.” It believed that “arbitrarily imposed legislative sanctions restricting your sexual freedom should be rescinded through the legislative process.” HINT also sent Jacobson a survey, and he responded that he had an “average” interest in “[p]reteen sex-homosexual” material. Jacobson also stated that: “Not only sexual expression but freedom of the press is under attack. We must be ever vigilant to counter attack right wing fundamentalists who are determined to curtail our freedoms.” HINT portrayed itself as a lobbying organization that sought to repeal “all statutes which regulate sexual activities, except those laws which deal with violent behavior, such as rape. HINT is also lobbying to eliminate any legal definition of ‘the age of consent.’” HINT indicated that it would fund these efforts through a future publication. HINT also provided Jacobson with a list of group members with similar survey responses, but Jacobson did not write to any of them. An undercover agent then wrote to Jacobson as “Carl Long,” and attempted to “mirror” Jacobson’s perceived interests. Jacobson wrote that “As far as my likes are concerned, I like good looking young guys (in their late teens and early 20’s) doing their thing together.” Jacobson never mentioned child pornography in his letters to Long.

During the more than two years of fictitious governmental mailings, Jacobson did not order any illegal child pornography. At that point, he was contacted by a governmental sting operation entitled “Operation Borderline,” which sent him a brochure portraying young boys engaged in sex. Jacobson placed an order that was never filled. Jacobson was then contacted by the United States Postal Service under the fictitious name “Far Eastern Trading Company Ltd.,” which stated: “As many of you know, much hysterical nonsense has appeared in the American media concerning ‘pornography’ and what must be done to stop it from coming across your borders. This brief letter does not allow us to give much comment; however, why is your government spending millions of dollars to exercise international censorship while tons of drugs, which makes yours the world’s most crime ridden country, are passed through easily.” The letter also stated: “[W]e have devised a method of getting these to you without prying eyes of U.S. Customs seizing your [mail]. After consultations with American solicitors, we have been advised that once we have posted our material through your system, it cannot be opened for any inspection without authorization of a judge.” The letter asked the petitioner to affirm that he was “not a law enforcement officer or agent of the U.S. Government acting in an undercover capacity for the purpose of entrapping Far Eastern Trading Company, its agents or customers.” When the petitioner affirmed that he was not, he was sent a catalog from which he ordered Boys Who Love Boys. The magazine was a pornographic depiction of young boys engaged in various sexual activities. The petitioner was arrested after he received the magazine. The government then searched Jacobson’s home, but did not find any other child pornography except the Bare Boys magazines previously ordered.

At trial, Jacobson testified that he placed the order because the government had aroused his curiosity. He stated: “Well, the statement was made of all the trouble and the hysteria over pornography and I wanted to see what the material was. It didn’t describe the—I didn’t know for sure what kind of sexual action they were referring to in the Canadian letter.” Jacobson was convicted.

In evaluating Jacobson’s conviction, the United States Supreme Court began by recognizing the “evils of child pornography” and the difficulties that the government has encountered in eliminating it. Relying on prior precedent, the Court reaffirmed the idea that it is permissible for governmental officials to “afford opportunities or facilities for the commission of the offense” and may also employ “[a]rtifice and stratagem [to] catch those engaged in criminal enterprises.” However, the Court reaffirmed the notion that the focus remains on whether the defendant was “predisposed” to commit the crime. In other words, if the government agents had “simply offered petitioner the opportunity to order child pornography through the mails, and petitioner [had] promptly availed himself of this criminal opportunity,” his entrapment defense would have been rejected.

The government tried to show predisposition based on two types of evidence. First, it argued that Jacobson’s order of the Bare Boys magazines showed predisposition. But the Court rejected this evidence on the basis that possession of those magazines was not criminal at the time. In addition, regarding the offending magazines, Jacobson claimed that he did not realize that they depicted minors until they arrived. The Court viewed Jacobson’s responses to the questionnaires as “at most indicative of certain personal inclinations, including a predisposition to view photographs of preteen sex and a willingness to promote a given agenda by supporting lobbying organizations.” However, the Court concluded that his responses did not show “that he would commit the crime of receiving child pornography through the mails.” In the Court’s view, “a person’s inclinations and ‘fantasies [are] his own and beyond the reach of [government].’”

The Court concluded that the criminal conduct in this case had originated with the government: “By the time petitioner finally placed his order, he had already been the target of 26 months of repeated mailings and communications from Government agents and fictitious organizations.” Although Jacobson was “predisposed” to commit the crime by the end of these mailings, the government was unable to show that he was predisposed before the governmental mailings began. The Court concluded that the Government “excited petitioner’s interest in sexually explicit materials banned by law” and “exerted substantial pressure on petitioner to obtain and read such material as part of a fight against censorship and the infringement of individual rights.” The Court noted that HINT described itself as “an organization founded to protect and promote sexual freedom and freedom of choice” and stated that “the most appropriate means to accomplish [its] objectives is to promote honest dialogue among concerned individuals and to continue its lobbying efforts with State Legislators.” These efforts were to be financed catalog sales. Other solicitations raised concerns about censorship and the rights of individuals to view such materials. In addition, HINT required Jacobson to affirm that he was not a Government agent attempting to entrap the mail order company or its customers, and both Government solicitations suggested that receiving this material was something that petitioner ought to be allowed to do.” Jacobson purchased prohibited materials only after a two-and-one-half year governmental campaign that was designed to convince him “he had or should have the right to engage in the very behavior proscribed by law.” Relying on Sherman, the Court noted that “the Government [may not] pla[y] on the weaknesses of an innocent party and beguil[e] him into committing crimes which he otherwise would not have attempted.”

Justice Sandra Day O’Connor dissented in Jacobson, arguing that there was sufficient evidence of predisposition because Jacobson “was offered only two opportunities to buy child pornography through the mail. Both times, he ordered. Both times, he asked for opportunities to buy more. He needed no Government agent to coax, threaten, or persuade him; no one played on his sympathies or friendship, or suggested that his committing the crime would further a greater good. In fact, no Government agent even contacted him face to face.”

Jacobson is important because it reaffirms the entrapment defense and applies it in a situation in which the evidence regarding predisposition is arguable. Some have argued that Jacobson represents an implicit acceptance of Justice Frankfurter’s “objective” approach to entrapment. Certainly, as Justice O’Connor suggests, there was sufficient evidence of predisposition to convict Jacobson. However, the Court appeared to be offended by the government’s tactics.


Justice WHITE delivered the opinion of the Court.

. . . There can be no dispute about the evils of child pornography or the difficulties that laws and law enforcement have encountered in eliminating it. Likewise, there can be no dispute that the Government may use undercover agents to enforce the law. “It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises.”

In their zeal to enforce the law, however, Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute. Where the Government has induced an individual to break the law and the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents.

Thus, an agent deployed to stop the traffic in illegal drugs may offer the opportunity to buy or sell drugs and, if the offer is accepted, make an arrest on the spot or later. In such a typical case, or in a more elaborate “sting” operation involving government-sponsored fencing where the defendant is simply provided with the opportunity to commit a crime, the entrapment defense is of little use because the ready commission of the criminal act amply demonstrates the defendant’s predisposition. Had the agents in this case simply offered petitioner the opportunity to order child pornography through the mails, and petitioner—who must be presumed to know the law—had promptly availed himself of this criminal opportunity, it is unlikely that his entrapment defense would have warranted a jury instruction.

But that is not what happened here. By the time petitioner finally placed his order, he had already been the target of 26 months of repeated mailings and communications from Government agents and fictitious organizations. Therefore, although he had become predisposed to break the law by May 1987, it is our view that the Government did not prove that this predisposition was independent and not the product of the attention that the Government had directed at petitioner since January 1985.

The prosecution’s evidence of predisposition falls into two categories: evidence developed prior to the Postal Service’s mail campaign, and that developed during the course of the investigation. The sole piece of preinvestigation evidence is petitioner’s 1984 order and receipt of the Bare Boys magazines. But this is scant if any proof of petitioner’s predisposition to commit an illegal act, the criminal character of which a defendant is presumed to know. It may indicate a predisposition to view sexually oriented photographs that are responsive to his sexual tastes; but evidence that merely indicates a generic inclination to act within a broad range, not all of which is criminal, is of little probative value in establishing predisposition.

Furthermore, petitioner was acting within the law at the time he received these magazines. Receipt through the mails of sexually explicit depictions of children for noncommercial use did not become illegal under federal law until May 1984, and Nebraska had no law that forbade petitioner’s possession of such material until 1988. Evidence of predisposition to do what once was lawful is not, by itself, sufficient to show predisposition to do what is now illegal, for there is a common understanding that most people obey the law even when they disapprove of it. This obedience may reflect a generalized respect for legality or the fear of prosecution, but for whatever reason, the law’s prohibitions are matters of consequence. Hence, the fact that petitioner legally ordered and received the Bare Boys magazines does little to further the Government’s burden of proving that petitioner was predisposed to commit a criminal act. This is particularly true given petitioner’s unchallenged testimony that he did not know until they arrived that the magazines would depict minors.

The prosecution’s evidence gathered during the investigation also fails to carry the Government’s burden. Petitioner’s responses to the many communications prior to the ultimate criminal act were at most indicative of certain personal inclinations, including a predisposition to view photographs of preteen sex and a willingness to promote a given agenda by supporting lobbying organizations. Even so, petitioner’s responses hardly support an inference that he would commit the crime of receiving child pornography through the mails. Furthermore, a person’s inclinations and “fantasies . . . are his own and beyond the reach of government. . . .” . . .

Law enforcement officials go too far when they “implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” Like the Sorrells Court, we are “unable to conclude that it was the intention of the Congress in enacting this statute that its processes of detection and enforcement should be abused by the instigation by government officials of an act on the part of persons otherwise innocent in order to lure them to its commission and to punish them.” When the Government’s quest for convictions leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should intervene.

Because we conclude that this is such a case and that the prosecution failed, as a matter of law, to adduce evidence to support the jury verdict that petitioner was predisposed, independent of the Government’s acts and beyond a reasonable doubt, to violate the law by receiving child pornography through the mails, we reverse the Court of Appeals’ judgment affirming the conviction of Keith Jacobson.

Justice O’CONNOR, with whom THE CHIEF JUSTICE and Justice KENNEDY join, and with whom Justice SCALIA joins except as to Part II, dissenting.

Keith Jacobson was offered only two opportunities to buy child pornography through the mail. Both times, he ordered. Both times, he asked for opportunities to buy more. He needed no Government agent to coax, threaten, or persuade him; no one played on his sympathies, friendship, or suggested that his committing the crime would further a greater good. In fact, no Government agent even contacted him face to face. The Government contends that from the enthusiasm with which Mr. Jacobson responded to the chance to commit a crime, a reasonable jury could permissibly infer beyond a reasonable doubt that he was predisposed to commit the crime. I agree.

The first time the Government sent Mr. Jacobson a catalog of illegal materials, he ordered a set of photographs advertised as picturing “young boys in sex action fun.” He enclosed the following note with his order: “I received your brochure and decided to place an order. If I like your product, I will order more later.” For reasons undisclosed in the record, Mr. Jacobson’s order was never delivered.

The second time the Government sent a catalog of illegal materials, Mr. Jacobson ordered a magazine called “Boys Who Love Boys,” described as: “11 year old and 14 year old boys get it on in every way possible. Oral, anal sex and heavy masturbation. If you love boys, you will be delighted with this.” Along with his order, Mr. Jacobson sent the following note: “Will order other items later. I want to be discreet in order to protect you and me.”

Government agents admittedly did not offer Mr. Jacobson the chance to buy child pornography right away. Instead, they first sent questionnaires in order to make sure that he was generally interested in the subject matter. Indeed, a “cold call” in such a business would not only risk rebuff and suspicion, but might also shock and offend the uninitiated, or expose minors to suggestive materials. Mr. Jacobson’s responses to the questionnaires gave the investigators reason to think he would be interested in photographs depicting preteen sex.

The Court, however, concludes that a reasonable jury could not have found Mr. Jacobson to be predisposed beyond a reasonable doubt on the basis of his responses to the Government’s catalogs, even though it admits that, by that time, he was predisposed to commit the crime. The Government, the Court holds, failed to provide evidence that Mr. Jacobson’s obvious predisposition at the time of the crime “was independent and not the product of the attention that the Government had directed at petitioner.” In so holding, I believe the Court fails to acknowledge the reasonableness of the jury’s inference from the evidence, redefines “predisposition,” and introduces a new requirement that Government sting operations have a reasonable suspicion of illegal activity before contacting a suspect.

This Court has held previously that a defendant’s predisposition is to be assessed as of the time the Government agent first suggested the crime, not when the Government agent first became involved. Until the Government actually makes a suggestion of criminal conduct, it could not be said to have “implant[ed] in the mind of an innocent person the disposition to commit the alleged offense and induce its commission. . . .” Even in Sherman v. United States, supra, in which the Court held that the defendant had been entrapped as a matter of law, the Government agent had repeatedly and unsuccessfully coaxed the defendant to buy drugs, ultimately succeeding only by playing on the defendant’s sympathy. The Court found lack of predisposition based on the Government’s numerous unsuccessful attempts to induce the crime, not on the basis of preliminary contacts with the defendant.

Today, the Court holds that Government conduct may be considered to create a predisposition to commit a crime, even before any Government action to induce the commission of the crime. In my view, this holding changes entrapment doctrine. Generally, the inquiry is whether a suspect is predisposed before the Government induces the commission of the crime, not before the Government makes initial contact with him. There is no dispute here that the Government’s questionnaires and letters were not sufficient to establish inducement; they did not even suggest that Mr. Jacobson should engage in any illegal activity. If all the Government had done was to send these materials, Mr. Jacobson’s entrapment defense would fail. Yet the Court holds that the Government must prove not only that a suspect was predisposed to commit the crime before the opportunity to commit it arose, but also before the Government came on the scene.

The rule that preliminary Government contact can create a predisposition has the potential to be misread by lower courts as well as criminal investigators as requiring that the Government must have sufficient evidence of a defendant’s predisposition before it ever seeks to contact him. Surely the Court cannot intend to impose such a requirement, for it would mean that the Government must have a reasonable suspicion of criminal activity before it begins an investigation, a condition that we have never before imposed. The Court denies that its new rule will affect run-of-the-mill sting operations, and one hopes that it means what it says. Nonetheless, after this case, every defendant will claim that something the Government agent did before soliciting the crime “created” a predisposition that was not there before. For example, a bribetaker will claim that the description of the amount of money available was so enticing that it implanted a disposition to accept the bribe later offered. A drug buyer will claim that the description of the drug’s purity and effects was so tempting that it created the urge to try it for the first time. In short, the Court’s opinion could be read to prohibit the Government from advertising the seductions of criminal activity as part of its sting operation, for fear of creating a predisposition in its suspects. That limitation would be especially likely to hamper sting operations such as this one, which mimic the advertising done by genuine purveyors of pornography. No doubt the Court would protest that its opinion does not stand for so broad a proposition, but the apparent lack of a principled basis for distinguishing these scenarios exposes a flaw in the more limited rule the Court today adopts.

The Court’s rule is all the more troubling because it does not distinguish between Government conduct that merely highlights the temptation of the crime itself, and Government conduct that threatens, coerces, or leads a suspect to commit a crime in order to fulfill some other obligation. For example, in Sorrells, the Government agent repeatedly asked for illegal liquor, coaxing the defendant to accede on the ground that “ ‘one former war buddy would get liquor for another.’ ”

The Government conduct in this case is not comparable. While the Court states that the Government “exerted substantial pressure on petitioner to obtain and read such material as part of a fight against censorship and the infringement of individual rights,” one looks at the record in vain for evidence of such “substantial pressure.” The most one finds is letters advocating legislative action to liberalize obscenity laws, letters which could easily be ignored or thrown away. Much later, the Government sent separate mailings of catalogs of illegal materials. Nowhere did the Government suggest that the proceeds of the sale of the illegal materials would be used to support legislative reforms. While one of the HINT letters suggested that lobbying efforts would be funded by sales from a catalog, the catalogs actually sent, nearly a year later, were from different fictitious entities and gave no suggestion that money would be used for any political purposes. Nor did the Government claim to be organizing a civil disobedience movement, which would protest the pornography laws by breaking them. Contrary to the gloss given the evidence by the Court, the Government’s suggestions of illegality may also have made buyers beware, and increased the mystique of the materials offered: “For those of you who have enjoyed youthful material . . . we have devised a method of getting these to you without prying eyes of U.S. Customs seizing your mail.” Mr. Jacobson’s curiosity to see what “ ‘all the trouble and the hysteria’ ” was about, is certainly susceptible of more than one interpretation. And it is the jury that is charged with the obligation of interpreting it. In sum, the Court fails to construe the evidence in the light most favorable to the Government, and fails to draw all reasonable inferences in the Government’s favor. It was surely reasonable for the jury to infer that Mr. Jacobson was predisposed beyond a reasonable doubt, even if other inferences from the evidence were also possible. . . .


Bennett, Fred Warren. “From Sorrells to Jacobson: Reflections on Six Decades of Entrapment Law, and Related Defenses, in Federal Court.” Wake Forest Law Review 27 (1992): 829.

Marcus, Paul. “Presenting, Back From the (Almost) Dead, the Entrapment Defense.” Florida Law Review 47 (1995): 205.

McLoughlin, Ian J. “The Meaning of Predisposition in Practice.” Boston University Law Review 79 (1999): 1067.

Berghuis v. Thompkins

Citation: 560 U.S. 370.

Issue: Whether the Sixth Circuit improperly expanded the Miranda rule in holding that Thompkins’s Fifth Amendment rights were violated.

Year of Decision: 2010.

Outcome: Yes. Thompkins’s Fifth Amendment rights were not violated according to the Court’s interpretation of the Miranda rule.

Author of Opinion: Justice Kennedy.

Vote: 5-4.

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