Inadmissibility of Police Entrapment Evidence in the US and German Trials in the Light of the Case-Law of the US Supreme Court and the ECTHR

Abstract

Summary The aim of this paper is to compare the American and European standards of the inadmissibility of evidence of unlawful police entrapment. In US criminal procedure, which permits active forms of entrapment, the US Supreme Court and most federal courts apply a subjective test for the entrapment defence, focusing on the predisposition of the person provoked to commit the crime and, less often, an objective test examining the legality of government agents’ actions. The Strasbourg standard (including German cases) is based on two tests: a substantive one (examining both the predisposition of the person being provoked and the legality of the police actions) and a procedural one, which consists in verifying the reliability of the national courts’ recognition of the charge of incitement to commit a crime by the police The basic difference between the analysed standards is to be found in the effects of illegal entrapment. In the US system, it is a justification to the perpetrator’s responsibility for a crime committed as a result of entrapment, and the Strasbourg standard allows for sanctioning the negative effects of such illegal evidence to be convalidated in criminal trial when the Court considers that “the trial as a whole was fair”.