Improving Juror Comprehension of Judicial Instructions on the Entrapment Defense1

Improving Juror Comprehension of Judicial Instructions on the Entrapment Defense1

DEAN MORIER~ EUGENE BORGIDA

ROGER C. PARK

Mills College University of Minnesota

Hastings College of Law

When the defense of entrapment is raised, the legal and psychological question is not whether the defendant committed some illegal act, but rather why the defendant behaved as he or she did and whether government agents’ actions provoked the defendant to commit the same crime. The subjective test of entrapment focuses on the predisposition of the defendant to commit a particular crime, while the objective test focuses on situational forces. In Study 1, type of entrapment defense (subjective, objective) and the defendant’s prior record (no prior record, prior record) were experimentally manipulated. As expected, superior comprehension of the judge’s instructions was found for jurors who heard subjective test instructions. Study 2 was designed to improve the comprehension and judgments of jurors who received 1 of 3 versions of the objective test. Juror comprehension of key legal concepts and subsequent judgments improved if jurors heard one of the rewritten versions of the objective test.

It is sometimes necessary for law enforcement agents to use undercover tactics to detect the commission of certain crimes (e.g., bribery, drug dealing). In efforts to find those who violate these laws, agents run the risk of creating situations favoring the commission of crimes by individuals who would not ordinarily commit such crimes. It is for this reason that American courts have recognized the defense of entrapment. When the entrapment defense is in- voked, the causal question is not whether the defendant committed some illegal act (e.g., selling drugs to a law enforcement officer), but rather why the defendant behaved as she did or whether a normally law-abiding person would

‘The authors would like to acknowledge the cooperation of attorney Joe Friedberg and U.S. Attorney Richard Vosepka, the Drug Enforcement Administration, and Sidney Abramson in constructing the trial stimulus. We are also grateful to Patrick McCoy, Mara LaNasa, Julie Friedman, Lisa Sarafolean, and Kelly Sherack for their research assistance and to John Fleming and Marti Hope Gonzales for their helpful comments on an earlier version of this paper.

*Correspondence concerning this article should be addressed to Dean Morier, Department of Psychology, Mills College, Oakland, CA 94613; or to Eugene Borgida, Department of Psychology, University of Minnesota, 75 East River Road, Minneapolis, MN 55455.

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Journal of Applied Social Psychology, 1996, 26, 20, pp. 1838-1866. Copyright 0 1996 by V. H. Winston & Son, Inc. All rights reserved.

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have behaved as the defendant did. Did law enforcement officers merely provide an opportunity for a crime to occur in the process of uncovering criminal activity or did they “create” a crime? Was the commission of the crime the result of the defendant’s own initiative and desire or was it brought about by orchestrated pressures of the situation?

Two opposing versions of the entrapment defense have competed for legal recognition (Gershman, 1982; Park, 1976, 1984). One defense, known as the subjective test, focuses on the subjective predisposition of the particular defendant. Under this test, the prosecution must prove that the defendant was ready and willing to commit the type of crime charged, prior to the solicitation by a government agent. If a defendant was predisposed to commit the crime (e.g., in a drug case, if the defendant was already an established drug dealer), then the entrapment defense should fail even if an agent used strong inducements to cause the defendant to commit the crime on a particular occasion. While the focus of this test is on the defendant’s predisposition, evidence about the nature of the agents’ inducements is admissible because a defendant who committed a crime when a mild inducement was used is more likely to have been predisposed to commit the crime than a defendant who responded to a strong inducement.

The second version of the entrapment defense, referred to as the objective test, focuses on the nature of the inducement used by law enforcement agents instead of the predisposition of the defendant to commit the crime. Under the objective test, an agent’s use of improper inducements (e.g., badgering, appeals to sympathy, offers of unusual profits) is grounds for acquittal, even if the defendant was predisposed to commit the type of crime charged. The predisposition of the particular defendant on trial is not an issue. Jurors are to decide the propriety of the agent’s behavior by determining whether the inducement would have caused a hypothetical “normally law-abiding person” to commit the crime. The objective test was not designed to acquit individuals of dimin- ished culpability, but rather to prevent improper police conduct. In one of the very few empirical studies of the entrapment defense, Kassin (1985) used the entrapment context to investigate such determinants of conviction rates as the predisposition of the defendant to commit a crime, and the strength of the inducement used by law enforcement agents. The research materials were written case summaries and involved rather mild forms of inducement, and results indicated that the most important determinant of jurors’ decisions was the pressure of the soliciting agent.

Perhaps the most significant obstacle to jurors in correctly applying entrapment law is difficulty comprehending the judge’s instructions about what constitutes entrapment. Misunderstanding of the entrapment defense could have serious effects on the potential success of the defense. There is empirical

1840 MORIER, BORGIDA, AND PARK

evidence that jurors who receive objective test instructions have more difficulty understanding these instructions than do jurors who receive subjective test instructions in entrapment cases (Borgida & Park, 1988). Borgida and Park had jurors watch a videotaped reenactment of a drug trial where the defense of entrapment was employed by a defendant charged with the sale and distribution of cocaine. Jurors receiving subjective test instructions exhibited far better comprehension than did objective test jurors. Jurors hearing the objective test had difficulty understanding the legal concept of the hypothetical normally law-abiding person. The results indicated that jurors were confusing the normally law-abiding person with the average person. Police conduct, however, should not be measured against whether it would cause the average person to commit the offense (Park, 1976). Police inducement would have to be extremely strong to cause an average person to commit a serious crime.

Consider, for example, the situation presented by the leading case of Sherman v. United States (1958). In Sherman, the defendant was an addict who, while undergoing treatment, was lured into selling heroin by a police agent. The inducements offered were extremely tempting to an addict, but would not have caused an average person to sell heroin. Even though the inducements would not have tempted an average person, all of the Justices, whether they favored the objective test or the subjective test, agreed that entrapment had occurred in Sherman. The Brown Commission (197 l), source of the “normally law-abiding person” formula frequently used in objective test jurisdictions, cited Sherman approvingly, thereby indicating that it also believed that entrapment had occurred in that case. Park (1976) has described the normally law- abiding person as “one who may have a proclivity for the crime, but normally does not commit it” (p. 174).

Though there is some division of opinion on the issue, courts appear to be moving toward a recognition that the average person test is not appropriate. Some courts that originally characterized the test in terms of the average person have recognized that the test is too stringent. In State v. TayZor (1 979), the Utah Supreme Court, emphasizing that under the objective test attention must focus on the conduct of the government, stated that in assessing police conduct, the test for entrapment was whether the inducement “would be effective to persuade an average person.” Subsequently, a Utah trial judge in an entrapment case instructed the jury that in assessing police conduct under the defense of entrapment, the test to determine an unlawful entrapment is whether a law enforcement official, in order to obtain evidence of the commission of an offense, “induced the defendant to commit such offense by persuasion or inducement which would be effective to persuade an average person, other than one who was merely given the opportunity to commit the offense” (State v. Cripps, 1984, p. 749). The Supreme Court of Utah held that giving this

ENTRAPMENT DEFENSE 1841

instruction was reversible error. Referring to prior opinion in the Taylor case, it stated that its casual use of the phrase “average person” was not intended to establish the average person as the standard against which police conduct was to be measured. It noted that it had determined that the defendant in Taylor had been entrapped, even though Taylor’s conduct was not the conduct of an average person. The Utah Court concluded that the proper standard was whether the police conduct created a likelihood, objectively considered, that only those ready and willing to commit the crime would do so. The Alaska Supreme Court has taken a similar course (Puscu v. State, 1978).

In addition to comprehension difficulties, a possible psychological obstacle to jurors’ understanding and ability to correctly apply entrapment law is the well-established tendency of persons to infer dispositional characteristics from the behavior ofactors (Jones, 1979, 1990; Ross, 1977). This inferential bias has been demonstrated in a variety of different problem contexts and under many different experimental conditions (Gilbert & Jones, 1986; Jones, 1979, 1986, 1990; Ross, 1977; Sherman & Corty, 1985). The operation of this “correspondence bias” may be one reason why subjects have difficulty comprehending the judge’s instructions about entrapment or correctly apply the entrapment standard to specific cases. To the extent that jurors, like their peers, are inclined to think dispositionally about others’ behavior, an objective test of entrapment may be more difficult to comprehend well enough to apply correctly in legal cases. For example, verdicts may reflect the degree to which jurors believe a defendant’s character caused him to commit the crime, even though the defendant’s character is not at issue under the objective test. That is, because people have difficulty discarding character from their reasoning, jurors may be less likely to deal appropriately with the hypothetical person construct.

Thus, in our first study, we expected that jurors who received subjective test instructions would have better comprehension of those instructions than would jurors receiving objective test instructions. In our second study, two new versions of the objective test were constructed. In addition to clarifying the language of the objective test, both sets of new entrapment instructions explicitly distinguished the normally law-abiding person from the average person. In so doing, the standard is clarified, which in turn should improve comprehension of the entrapment instructions. An attempt was also made, through instructions, to focus jurors’ attention on the situational forces that may have acted upon a hypothetical normally law-abiding person. This should improve the correct application of the objective test of entrapment. Under the objective test, one should expect to find a stronger correlation between jurors’ view that the situation would provoke the normally law-abiding person to commit the crime and their final verdict than under the subjective test, and no reliable relationship between their judgment that the defendant’s character caused the


defendant’s behavior and their verdict. One should also expect a stronger correlation between jurors’ view that situational forces caused the defendant’s behavior and their final verdict than under the subjective test. This was expected because jurors should be focusing on the effects of situational forces on a hypothetical normally law-abiding person in the same situation that the defendant faced.

Study 1

Type of judicial instruction (standard subjective test or standard objective test) and defendant’s criminal record (prior conviction for distribution of LSD or no prior conviction for distribution of LSD) were varied in a 2 x 2 factorial design. Subjects were randomly assigned to one of the four conditions.

Method

Subjects

Subjects were 91 undergraduates (52 males, 39 females) enrolled in general psychology at the University of Minnesota who volunteered to participate for extra course credit.

Procedure

Subjects reported in groups of 3 to 10 to a large laboratory room where they viewed on a black and white video monitor a videotaped reenactment of a trial in which the defendant was charged with possession and distribution of cocaine. Subjects were instructed that they would be participating in a study of jury decision making and that the investigators were interested in how potential jury members, like themselves, weigh evidence in trials before and after jury deliberation. They were then informed that they would be watching a 2-hr videotape of a cocaine trial, and that afterward they would be asked to complete a questionnaire about the trial. Jurors were also told that following the comple- tion of the questionnaire, they would convene and deliberate as a jury until they reached a unanimous ~ e r d i c t . ~

3While jurors did not actually deliberate, they believed they would be defending their judgments during deliberation. Research by Hamilton (1978) found that questionnaire respondents are more motivated to make accurate judgments and take a task more seriously when they expect they will have to defend their judgments at a later time. Whether deliberation would eliminate juror misunderstanding is an empirical question, but seems doubtful given research (e.g., Hamilton, 1978) concerning the effects of jury deliberation on jurors’ judgments.

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Subjects then viewed the videotape of a criminal case involving the possession and distribution of ~ o c a i n e . ~ The 2-hr videotaped trial, known as State v. Dean, contained a fact pattern that was intentionally designed to give the entrapment defense a good chance of success. Other than stronger-than-usual defense facts, the case was fairly typical of drug cases in which the entrapment defense has been raised.

In State v. Dean, a drug dealer (Joe Pinewood) had been arrested while attempting to smuggle cocaine from Mexico into the U.S. In return for a promise that the prosecution would inform the sentencing judge that he had cooperated in apprehending other offenders, Pinewood agreed to deliver the cocaine to persons whom he claimed were planning to buy and distribute it. In the meantime, an undercover agent (Robert Young) working for the Drug Enforcement Administration (DEA) had been negotiating with the defendant, Harold Dean, for the purchase of some cocaine after Young and Dean had met at a party held at Dean’s home. Agent Young had initiated contact with Dean about the purchase of some cocaine. Pinewood, upon his return to Minneapolis, then sold a portion of his cocaine to Harold Dean, at a reasonable price, with the authorities’ consent. Immediately after this transpired, Dean sold the cocaine to Agent Young for a much higher price. Dean testified that he was a user of cocaine but that he was not a dealer of cocaine. He said that he was tempted on this one occasion because of the opportunity for a large profit and the need to finance his own expensive drug habit. Dean did not contest the possession charge during the trial, but he contended that he had been entrapped by the undercover agents into selling cocaine to Agent Young.

The State v. Dean trial simulation was quite realistic. All versions of State v. Dean included every procedural aspect of an actual drug trial. Experienced attorneys with considerable expertise in narcotics cases portrayed the prosecutor and defense attorney. For example, both lawyers made opening statements and final arguments, and they addressed the elements of entrapment doctrine as any lawyer in an actual case would do. The trial judge was portrayed by a former District Court judge and both informant Pinewood and Agent Young were played by actual DEA agents. Only the defendant, Harold Dean, was portrayed by a professional actor.

Prior conviction manipulation. In the State v. Dean case, jurors either viewed a version in which no mention was made of the defendant’s previous conviction for distribution of the drug LSD or they viewed a version in which the defendant mentioned his previous conviction. In the prior-conviction conditions, jurors were told by the defendant at the outset of his testimony, and

4The trial stimulus tapes were the same as those used in the Borgida and Park (1988) study.


under questioning from his attorney, that 5 years prior to the present allegation he had pled guilty to a charge of distributing LSD.

Entrapment instruction manipulation. Following the attorney’s closing arguments, the judge addressed the jury regarding the law in the case. The first part of the judge’s charge to the jury was the same for both instruction conditions and was based on pattern jury instructions used in most federal jurisdictions (DeVitt & Blackmar, 1977). These instructions defined “reasonable doubt,” “presumption of innocence,” “burden of proof,” and outlined the elements of the defendant’s alleged offense (e.g., the judge defined “possession” and “distribution”). The second part of the judge’s final charge to the jury defined entrapment using one of the two different types of entrapment instructions. Jurors received either the standard subjective test instructions or the standard objective test instructions.

The standard subjective test instructions focused on the predisposition of the particular defendant on trial. Jurors were instructed that the defendant claimed he was entrapped into selling cocaine by the drug enforcement agents, and that their task as jurors was to determine whether the defendant was ready and willing to distribute cocaine prior to any contact with law enforcement agents. These instructions are the same as those used in earlier research by Borgida and Park (1988) and were also based on DeVitt and Blackmar (1977). These instructions defined entrapment as cases “where a person has no previous intent or purpose to violate the law, but is induced or persuaded by law enforcement officers or their agents to commit a crime.” The judge went on to clarify this definition by stating that “when a person already has the readiness and the willingness to break the law, the mere fact that government agents provide what appears to be a favorable opportunity is not entrapment.” The complete instructions followed the typical pattern instructions used in jurisdictions where the subjective test is used.

The standard objective test instructions focused on the nature of the inducements used by law enforcement agents. Jurors who heard this definition of entrapment were instructed that the defendant claimed he was entrapped into selling cocaine by the drug enforcement agents, and that their task as jurors was to determine whether the law enforcement agents used unfair tactics. Jurors were informed that the predisposition of the actual defendant on trial was irrelevant. Under this test, entrapment was said to occur

when a law enforcement agent induces the commission of an offense, using persuasion or other means likely to cause normally law-abiding persons to commit the offense. If law enforcement officers or their agents used improper inducements that would create a risk that normally law-abiding persons would commit


the offense, then the law as a matter of policy forbids conviction of this defendant for the crime of distribution of cocaine.

They were then told:

Ladies and gentlemen, the evidence concerning a prior conviction of Mr. Dean is admitted only for your consideration in deciding whether Mr. Dean is telling the truth in this case. You may not consider this conviction as evidence of his character of conduct except as you may think it reflects on his believability.

The instructions were based on the Brown Commission’s (1 97 I ) version of the entrapment defense and are similar to pattern instructions used in California.

When the trial ended, subjects were reminded that they would deliberate as a jury after they had all completed the questionnaire. After subjects finished the questionnaire, they were debriefed.

The Juror Questionnaire

Subjects in Study 1 answered questions that focused on verdict, and recognition memory of the judge’s instructions and of the basic trial testimony. Verdict was measured first and then was followed in the questionnaire by the recognition measures.

Verdict. Jurors first rendered a verdict by finding the defendant either: (a) not guilty of either possession or distribution of cocaine, (b) guilty of possession of cocaine but not guilty of distribution of cocaine, or (c) guilty of both possession and distribution of cocaine.

Recognition measures. All jurors then completed three different sets of recognition measures. One set contained seven questions about the judge ’s general charge to the jury, which consisted of four multiple choice and three true-false questions. For these items, the correct responses were the same for all jurors in the study. These questions addressed the judge’s discussion of reasonable doubt, the presumption of innocence, possession of drugs, the defendant’s indictment, and elements of the case that were consented to by both the prosecution and the defense.

The second set of recognition measures, which all jurors completed, addressed the judge’s entrapment instructions (Appendix A). The same five questions were answered by jurors in both the standard subjective and the standard objective test conditions, but the correct answer to each question depended on whether jurors received subjective or objective test entrapment instructions. These questions asked about the readiness of the defendant to sell


cocaine, whether the determination of guilt was based on the predisposition of the defendant or whether a normally law-abiding person would be enticed to commit the crime, about the elements necessary for acquittal, and about the distribution ~ h a r g e . ~

The third set of measures completed was 16 multiple choice questions about the basic trial testimony. The correct answers, for each question, were the same for all subjects since the questions addressed basic trial testimony that did not vary as a function of the type of entrapment instruction heard by jurors. Questions such as how much cocaine was allegedly sold by Dean to Young, the promises made by the prosecutor to prosecution witnesses, the amount of money involved in the transaction, and other questions about the trial testimony were asked.

Results

Comprehension of Judicial Instructions

The mean proportions of correct responses as a function of entrapment instruction are presented in Table 1. No reliable differences for the mean proportion of trial facts, the mean proportion of the judge’s general charge, or the mean proportion of total items correctly identified were found (all t s < 1.22, ns). However, there were reliable differences in the mean proportion of entrapment instructions correctly identified, F( 1, 87) = 1 1.64, p < .OO 1. Jurors in the subjective test condition correctly recognized 62% of the entrapment items, while jurors in the objective test condition correctly recognized only 46%. These results replicate the findings of Borgida and Park ( 1988).6

The proportions of correct items for each entrapment question are presented in Table 2 . It may be seen that jurors in the subjective test condition demonstrated reliably better comprehension on three of the five entrapment questions.

5All of the questions had the same four response alternatives. This avoids any problem that differential results in recognition accuracy between jurors in the standard subjective test and standard objective test conditions could be due to differences in item difficulty, rather than differences in comprehension.

6We also expected that conviction rates would be highest in the subjective-test-prior-record condition because jurors in the subjective-prior condition were told to judge the defendant’s guilt by his predisposition to commit a crime, and would presumably use the prior conviction as evidence of a predisposition. There was a reliable difference between the mean verdict in the prior-record-subjective-test condition and the three other conditions, t(87) = 1.70, p < .05, one-tailed test. This also replicates the pattern of results hypothesized and obtained by Borgida and Park (1988). A test of the residual sums of squares to determine if other effects could account for some of the observed between-groups variance was conducted (Hays, 1981) and was not statistically significant, F(2, 87) < 1, ns.


Table 1

Mean Proportion of Items Recognized as a Function of Entrapment Instruction-Study 1

Entrapment instruction

Standard Standard subjective objective

test test (n = 50) (n = 41)

Measure M SD M SD F( 1, 87)

Judge’s charge .83 (.09) .85 (.13) 0.61,ns Entrapment instructions .62 (.26) .46 (.17) 1 1 . 6 4 , ~ < .001 Trial facts 3 8 (.lo) .89 (.07) < 1.00, ns Total .82 (.09) .81 (.06) 1.22, ns

Table 2

Comprehension as a Function of Entrapment Instruction-Study 1


Standard Standard subjective objective

test test

Question M SD M SD F(1,87)

1 .90 (.30) .70 (-46) 5.99, p < .02 2 .49 (51) .62 (.49) 1.60, ns 3 .58 (50) .08 (.27) 37.26, p < .001 4 .66 (-48) .76 (.43) 1.12, ns 5 .46 (50) .16 (.37) 10.66, p < .002


No one item was more correctly identified in the standard objective test condition than in the subjective test condition. A closer examination of these individual questions reveals that jurors in the objective test condition had considerable difficulty understanding the concept of the hypothetical normally law-abiding person which is critical to proper use of the judicial instruction. For example, in Question 5 (Appendix A), the correct response for jurors under the subjective test is Statement a, and Statement c is the correct response for jurors under the objective test. Yet, 52% of jurors under the standard objective test chose d, the “average person” option. A similar result obtained for Ques- tion 3: Fully 80% of the jurors under the objective test incorrectly selected an average person statement, rather than the correct statement regarding the hypothetical normally law-abiding person. Therefore, jurors seemed to impose an average-person standard to determine entrapment in the objective test condition.

Discussion

As expected in Study 1, jurors who received subjective test entrapment instructions demonstrated better comprehension than jurors with objective test instructions. This establishes the robustness of the earlier pattern of findings based on jury-level data in the Borgida and Park (1988) study. Additional analyses revealed that jurors in the objective test conditions had difficulty comprehending the difference between the average person and the hypothetical normally law-abiding person. This could be due to the difficulty in understanding the legal terminology used in the standard objective test instructions, so that the standard “normally law-abiding” was misunderstood as the “average person.” The average person presumably would not possess or distribute cocaine, and a juror using the average person as the standard would be more likely to vote for conviction than a juror using the normally law-abiding person as the standard. Therefore, jurors’ failure to use the appropriate standard (i.e., the normally law-abiding person) could have significant (negative) consequences for the defendant in many cases.

In addition, some jurors tended to adopt a subjective test standard regarding the defendant’s predisposition to commit the crime. For example, in response to one of the questions, 26% of jurors under the objective test conditions said that the defendant would be entitled to acquittal “if the defendant had no previous intent or purpose to violate the law.” In essence, some subjects reported that their verdict depended on the predisposition of the defendant, in spite of the fact that they were explicitly instructed that the standard for determining whether entrapment occurs is the normally law- abiding person.


Clearly, then, efforts to improve juror comprehension of objective test instructions must address confusion due to the use of legal jargon and, in particular, to the important distinction between the average person and the normally law-abiding person. When jurors understand the objective test, they should be more sensitive to situational influences on the defendant’s behavior and in particular to the normally law-abiding concept. In Study 2, therefore, we sought to improve juror comprehension of the objective test. The new instructions were developed in accordance with some of the psycholinguistic principles that have been applied to the reformation of judicial instructions in other studies (Borgida & Park, 1988; Charrow & Charrow, 1979; Elwork, Sales, & Alfini, 1977, 1982; Greene, 1988; Severance & Loftus, 1982). These principles include the avoidance of legal jargon, of unnecessary synonyms, of self- embedded sentences, and of lengthy item strings. In addition to simplifying the language of the objective test in the new instructions, both sets of new entrapment instructions explicitly distinguished the normally law-abiding person from the average person.

In addition, Study 2 examined if enhanced comprehension would also yield evidence for a more appropriate application of the objective test. Improved comprehension of judicial instructions does not necessarily mean that jurors will apply the law more accurately (Severance & Loftus, 1982). Neither does an apparent failure to comprehend instructions (as measured by a memory task) mean that jurors are unable to understand and apply the intent of the law (as measured by verdicts rendered). For example, jurors may not be able to remember the wording of the judge’s instructions, but their verdict may be based on consideration of the factors necessary to reach a legally correct decision (e.g., jurors in the objective condition correctly basing their verdict on judgments of how agent behavior in the situation affected the normally law- abiding person, rather than on the disposition of the defendant). Juror misunderstanding of the law, in this case, may be overestimated by relying solely on recognition of the judge’s instructions.

Finally, we examined a pertinent individual difference in perceptions among jurors that potentially moderates appropriate applications of the “normally law-abiding person” concept under objective test entrapment instructions. Jurors who perceive the normally law-abiding person in a lenient fashion may think such a person could be coerced, under some circumstances, into selling cocaine to government agents. These lenient jurors should be more willing to believe a claim of entrapment raised by the defense. Jurors with a more stringent view of the normally law-abiding person might perceive such a person to be like the average person who would be unlikely, under any circumstances, to violate the law by selling drugs to government agents. Thus, stringent jurors should be less willing to believe an entrapment defense.


Study 2

Method

Subjects

Subjects were 15 1 undergraduates (82 males, 69 females) enrolled in general psychology at the University of Minnesota who volunteered to participate in the experiment in return for extra course credit.

Design

Type of objective test instruction (standard, revised language or plain- language) and defendant’s criminal record (prior conviction for distribution of LSD or no prior conviction for distribution of LSD) were varied in a 3 x 2 factorial design. Subjects were randomly assigned to one of the six conditions.

Procedure

The procedure for Study 2 was identical to Study 1 except for the introduction of two new sets of entrapment instructions, the exclusion of subjective test instructions, and the introduction of new measures related to individual differences.

As in Study 1, following the attorney’s closing arguments, the judge addressed the jury regarding the law in State v. Dean. Three different versions of the objective test entrapment instructions were used: standard objective test (the same version used in Study I), revised-language objective test, and plain-language objective test. The revised-language and plain-language versions of the objective entrapment instructions were evaluated for legal accuracy by a lawyer and judge who were both experts in entrapment doctrine and criminal law.

The revised-language objective test instructions were devised to reduce linguistic confusion and to explicitly discuss the difference between the average person and the hypothetical normally law-abiding person. Borgida and Park (1988) suggested this revised form, but they did not test its effects on juror comprehension and judgment. This revised test included the term “normally law-abiding person” in the instructions. These instructions were also designed to focus the jurors’ attention on police conduct. The revised objective test instructions were written so that jurors would understand that they were to consider situational pressures to determine if entrapment occurred (see Appendix B for the complete text of these instructions).

The plain-language objective test instructions were also devised to mini- mize linguistic confusion. They went one step further than the revised test in


that all legal jargon was removed. This version did not use the term “normally law-abiding person”; instead, the conceptual definition of the term was included. The plain-language instructions were written in accordance with linguistic theory and research done on plain language (Charrow, 198 1; Felsenfeld & Siegel, 1981; Park & Freeman, 1982; Park & Harvey, 1985).7 These changes were expected to assist jurors in organizing the judge’s points as he read the charge to the jury. It was written in a question-and-answer format, which was also expected to facilitate understanding (see Appendix C for the complete text of the plain-language instructions).

In simplifying the instructions, we avoided use of the phrase “normally law-abiding person.” The plain-language instruction, therefore, might be viewed as changing the test for entrapment in jurisdictions whose statutory definition of entrapment includes explicit reference to a normally law-abiding person. Also, the instruction’s emphasis on the idea that the defendant’s willingness to commit the crime is not an issue and the statement that the issue is whether the method used “would persuade someone who had a weakness for the crime but who would not normally commit the crime” might be seen by some judges as giving undue emphasis to elements favorable to the defense. Nonetheless, the instructions state in simple and clear terms the basic elements of the objective test and spell out the implications of rejecting the “average- person” test. They also seek to achieve a balance between prosecution and defense by indicating that not all solicitations are prohibited. A court that was willing to state simply and explicitly both sides of the objective test could legitimately adopt the instruction within the framework of a statute that referred to a normally law-abiding person.

The Juror Questionnaire

All of the measures used in Study 1 (including the verdict measure and recognition measures) were also used in Study 2. Several additional measures were completed by subjects after verdict and recognition measures were completed.

Views of the normally law-abiding person. Jurors’ perceptions of what constitutes the normally law-abiding person were examined by a six-item index. The index included statements about the normally law-abiding person, and jurors were asked to state their agreement or disagreement with each

7Principles incorporated in this version included conciseness of the instructions, the separation of complex ideas or procedures into component parts, the presentation of the instructions in the order they are to be performed, and the inclusion of critical cues such as questions, numbers or both (as one does when outlining).


statement on a 7-point scale ranging from 1 (strongly disagree) to 7 (strongly agree). For example, two statements used in the index were “The normally law-abiding person uses drugs on occasion” and “The normally law-abiding person never commits a crime, no matter how strong the inducement to do so is.” This scale measured jurors’ estimates of the influence of situational factors on someone normally law abiding, as well as their tolerance of law-breaking behavior, and proved to be a reliable scale (coefficient a = .73).

View of the defendant as normally law abiding. Jurors responded to three questions about their perceptions of the defendant, Harold Dean, as a normally law-abiding person. For example, jurors indicated the extent to which they agreed with the statement “The defendant, Harold Dean, is a normally law- abiding person.”

Situational and dispositional causes of the defendant’s behavior. Jurors answered four questions regarding their views of what caused the defendant’s behavior. These attribution questions are crucial to the determination of whether the juror will find the defendant guilty or not guilty for the crime of distribution of drugs. Under subjective test conditions, jurors’ views of the agent’s behavior should be highly correlated with their verdicts, such that those who view the agent’s behavior as causing the defendant’s behavior should find the defendant not guilty. However, the character of the defendant should not be correlated with verdict under objective test conditions, since the character of the defendant is not at issue. Only when jurors are deciding whether entrapment occurred under subjective test conditions should issues of the defendant’s character be considered when reaching a final verdict.

Jurors also responded to a question which asked them if this situation would have provoked a normally law-abiding person to commit the crime with which the defendant was charged. Since this is the standard for judging whether entrapment occurred under the objective test, we expected that there would be a strong correlation between jurors’ response to this question and their verdicts. Jurors responded to each question on a 5-point Likert scale. They were asked “To what extent did the situation in which Harold Dean found himself cause his actions?,” “To what extent did Harold Dean’s character cause his actions?,” “How responsible was Harold Dean for his actions?,” and “To what extent was Harold Dean’s sale of drugs induced or provoked by the behavior of Pinewood and agent Young?”8

*In order to assess whether subjects were differentially influenced by the defendant’s prior conviction for LSD distribution (only under prior record conditions) or the attorneys’ performances, jurors were asked about the prior conviction as well as questions on the attorneys’ competence, persuasiveness, believability, interest, and how much their arguments about entrapment influenced their final verdict.


Results

Comprehension Effects

Table 3 presents the results of the 3 x 2 (Type of Entrapment Instruction x Prior Record) ANOVAs that were performed on the recognition measures. There were no interaction effects between entrapment instruction and prior record of the defendant (all Fs < 1.10, ns). There were no main effects for prior record on any of the measures except for overall recognition, F( 1, 145) = 7.60, p < .01. While the latter is statistically reliable, the difference between the levels for jurors who did not hear prior record testimony versus those who did is negligible (78% vs. 8 I%, respectively). There were no main effects for type of instruction for the judge’s charge, F(2, 145) = 2.45, ns; for trial facts, F(2, 145) < 1.00, ns; or for total recognition, F(2, 145) < 1.00, ns.

There was a main effect of instruction on the comprehension of the entrapment instructions (Entrapment Index, Table 3), F(2, 145) = 4.19, p = .017. Contrary to prediction, however, Tukey follow-up tests revealed that comprehension of the entrapment instructions under plain-language instructions was not reliably better than under the standard objective test (p < .05). There were not reliable differences in comprehension between jurors in the standard and revised objective test conditions, or between jurors in the revised and plain- language objective test conditions.

However, an inspection of jurors’ responses shows some improvement in the comprehension of specific legal definitions. The most crucial legal concept for the objective test is that of the “normally law-abiding person.” Examining those items that required a choice between an average-person option and a normally law-abiding person option, jurors in the plain-language and revised objective test conditions were indeed more likely to choose the normally law-abiding person response than were jurors in the standard objective test condition. Only 34.0% and 16.0% ofjurors in the revised test, and 27.5% and 16.0% in the plain-language condition chose the average person option for these two items, versus 80.0% and 52.0% for jurors in the standard objective test condition. Clearly, then, jurors who received either the revised or plain-language test instructions more easily discriminated the correct normally law-abiding person standard from the average person standard when deciding if entrapment occurred.

One reason why jurors in the plain-language entrapment condition may not have performed better on the recognition items reported in Table 3 involves the wording of the test items. Perhaps jurors in the plain-language condition, who actually did not hear the term “normally law-abiding person” in the judge’s instructions, may have been disadvantaged when answering questions that included such language. If recognition performance was affected by this item


Table 3

Mean Proportion of Correctly Recognized Items as a Function of Entrapment Instruction-Study 2


Standard Revised Plain objective objective language

test test test (n = 50) ( n = 50) (n = 51)

Measures M SD M SD M SD F(2, 145)

Judge’s charge Entrapment index Trial facts Total Entrapment Q 1

(situation or character is the entrapment standard)

Entrapment 4 2 (agents’ behavior)

Entrapment 4 3 (strength of inducement)

Entrapment 4 4 (strength of evidence)

Entrapment Q5 (defendant predisposition)

.85 (.13)

.46a (.17)

.89 (.07)

.81 (.06)

.7Oa (.46)

.62 (.49)

.08, (.27)

.76, (.40)

.16 (.37)

3 3 (.13) .85 (.13) .44& (.26) .35b (.20)

.89 (.08) .90 (.08)

.79 (.08) .79 (.07)

.46b (SO) .14, (.34)

.56 ( S O ) .39 (.49)

.42b (.So) .55b (.50)

.34 (.48) . I 8 (.39)

2.45, ns 4 . 1 9 , ~ < .02

< 1.00, Izs < 1.00 , ns

20.40, p < .001

2.88, p = .06

1 5 . 1 3 , ~ < .001

7.26, p < .OO 1

2.87, p = .06

Note. Means with different subscripts, within a row, are reliably different at p = .05 using Tukey post-hoc comparisons.


content issue, then one would expect improved comprehension on identical questions that did not use the term “normally law-abiding person” for jurors in the plain-language condition.

To test this hypothesis, a separate sample of 38 jurors was obtained from the same subject population used in Study 2 and randomly assigned to either the standard objective test condition or to the plain-language condition. After watching State v, Dean, jurors answered questions that were rewritten so that the term “normally law-abiding person” did not appear in the question or in the response alternatives (three of the five questions had to be slightly reworded). Results indicated that juror comprehension improved in the plain language condition to 50.0%, which is reliably different from the previous level of 35.0%, t(71) = 2 . 1 4 , ~ < .05. Juror comprehension did not improve reliably for jurors in the standard objective test condition (49% vs. 46%), t(64) = 0.77, ns. Overall, however, there was still no difference in recognition accuracy between the standard objective test condition and plain-language condition for the forced-choice questions, t(35) = 0.88, ns. While rewriting the questions improved comprehension of the plain-language instruction to the level of the standard objective test, these findings underscore that jurors in Study 2 were nevertheless thinking in terms of the subjective test.9 Although the plain- language instruction clearly stated that the test was not whether the average person would have committed the crime, some jurors may have misinterpreted this aspect of the test. They may have reasoned that if the test was not whether the average person would have committed the crime, then it must be whether this particular defendant would have committed the crime. In this manner, subjective test reasoning may have been imposed. Indeed, an examination of responses to the entrapment items shows that for four of the five questions, jurors more frequently chose the subjective test option after receiving the plain-language instructions than after the objective test instructions.

Situational and Character Causes of the Defendant’s Behavior

In order to examine the extent to which jurors viewed the defendant’s character or the situation as the cause of the defendant’s behavior, correlations

9Jurors’ open-ended responses were also examined to detect differences between jurors in the standard objective test condition and jurors in the plain-language condition. Two coders, blind to the experimental hypotheses, rated each juror’s response to the open-ended question that asked them to state the judge’s definition of entrapment in their own words. Completely correct responses were given a rating of 2, partially correct responses were given a rating of 1 , and incorrect responses were given a rating of 0. There was 82% agreement between the raters. No reliable difference was found between objective test jurors’ and plain-language jurors’ open-ended recall of the definition of entrapment, t(36) = 0.78, ns.


Table 4

Correlations Between Attribution Questions and Verdict as a Function of Entrapment Instruction

Revised Objective Plain-language objective test test objective test

Measure (n = 50) ( n = 50) ( n = 51)

Situation as cause -.28* -.52*** -.51*** Defendant’s character

Would provoke a normally

Fairness of defendant’s

Defendant’s responsibility

Defendant

as cause .15 .07 .06

law-abiding person -.45*** -.59*** -.44***

treatment by agents .75*** .75*** .75***

for behavior .38** .43*** .24*

“ready” to sell drugs .27* .46*** .22

Note. Higher scores on the measures above indicate harsher verdicts, greater likelihood of perceiving the situation as the cause of the defendant’s behavior, stronger belief that the defendant’s character was the cause of the crime, lower likelihood of believing the normally law-abiding person would commit the crime, stronger belief that the agents’ behavior was fair, greater likelihood the defendant was responsible for the crime, and greater likelihood to believe the defendant was “ready” to sell drugs, respectively. *p < .05. **p < .01. ***p < .001.

were computed between verdict and questions about Dean’s character and the situational forces as causes of his behavior, and about the normally law-abiding person, within each entrapment condition. The results of this analysis are presented in Table 4.

As shown in Table 4, the judgment that situational factors caused Dean’s behavior is negatively correlated with verdict in all three test conditions. Jurors in the revised and plain-language test conditions displayed larger negative correlations between their verdict and their view of the situational causes of the defendant’s behavior than did jurors in the standard objective test condition (z = 1 S 5 , p = .06). The revised and plain-language versions of the objective test therefore were somewhat more likely to sensitize jurors to the power of situational forces.


As expected, jurors’ view of the defendant’s character (as the cause of his behavior) was uncorrelated with verdict. This, too, is consistent with juror understanding of the objective test instructions. Jurors’ view of whether the inducements used by agents would have provoked a normally law-abiding person to commit the crime, which is the standard for determining entrapment under the objective test, was negatively correlated with jurors’ verdicts. There were no differences between the correlations within each test condition (all z-test values <1 .OO, ns). Likewise, if jurors viewed the agent’s treatment of the defendant as fair, then one should expect to find positive correlations between their response to that question and their verdict; this is exactly what was found within all three instruction conditions. Therefore, the three versions of the objective test do suggest appropriate use of the standard for determining entrapment. But jurors in the revised and plain language versions demonstrate an increased sensitivity to the situational forces that may have influenced the defendant.

Jurors’ Perceptions of the Normally Law-Abiding Person

First, correlations between jurors’ perceptions of the normally law-abiding person, and their final verdicts were examined. As predicted, jurors’ concep- tion of the normally law-abiding person (where high scores indicate a more stringent view of the normally law-abiding person) was strongly and negatively correlated with final verdict, r(148) = -.41, p = .001. That is, a more tolerant view of the normally law-abiding person was associated with a greater likelihood of finding the defendant not guilty.

In order to assess whether jurors’ views of the normally law-abiding person were related to variables other than verdict, the mean responses on several dependent measures between the two normally law-abiding person groups were examined. As shown in Table 5, those with stringent views of the normally law-abiding person were more likely to find the defendant guilty, recommend a harsh sentence, and be less likely to view the defendant as a normally law-abiding person.

Since we hypothesized that jurors’ conceptions of the normally law-abiding person could affect juror acceptance of the entrapment defense, we examined whether views of the normally law-abiding person were associated with juror comprehension of the entrapment instructions. View of the normally law- abiding person, however, was not reliably correlated with jurors’ comprehension of the entrapment instructions, r(151) = .09.

General Discussion

The two different types of entrapment instructions, the subjective test and the objective test, essentially pose different sorts of causal questions for jurors.


Table 5

Mean Comparisons on Dependent Measures as a Function of Jurors ’ View of the NLAP

Stringent view Tolerant view of NLAP of NLAP t value

Dependent measure ( n = 77) ( n = 74)

Verdict 2.41 2.03 4.95*** Sentence 2.91 2.27 2.36* View of Dean as NLAP 3.34 3.61 2.81** Total recognition of judge’s

charge 0.79 0.76 0.66 Comprehension of entrapment

instructions 0.47 0.44 0.70

Note. Higher means indicate harsher verdicts, sentences, and views of Dean. *p < .05. **p < .01. ***p < .001.

The causal question for the law under the objective test is whether this situation (i.e., the agents’ behaviors in a particular case) would have caused a hypothetical normally law-abiding person to commit the crime. This is an inferentially complex question because people generally seem most inclined to make dispositional inferences about behavior in the absence of instructions to do other- wise. The results of the present investigation demonstrate that it is very difficult for jurors to comprehend the objective test and that lack of comprehension makes it difficult for jurors to offer judgments that are consistent with the objective entrapment standard.

The causal question for the law under the subjective entrapment test is different from that in the objective test. Under the subjective test, the question is whether the defendant in a particular case was ready and willing to commit the crime before being engaged by law enforcement agents. This task is inferentially less complex for jurors and it is easier to understand. The tendency for people to focus on and prefer dispositional explanations for others’ behavior is consistent with the type of causal reasoning required of jurors under the subjective test of entrapment. By the time jurors hear the judge’s instructions regarding the subjective entrapment test, they probably have made several inferences about the defendant’s character. Therefore, jurors are better able to use this test because it requires that they perfonn a task (focusing on the


defendant’s predisposition for the crime) that they can do more easily than the inferential task required by the objective test (Borgida & Park, 1988).

The results of the present investigation suggest that comprehension of the law and legal rules will be maximized when the legal instructions require an understanding that is compatible (rather than at odds) with intuitive reasoning. Overall, comprehension of entrapment instructions was not significantly improved by the use of new objective test instructions designed to reduce misunderstanding and improve comprehension. While overall comprehension under the standard objective test instruction and the plain-language version was about the same, there was substantial improvement in jurors’ comprehension of those aspects of the judicial instructions that specifically dealt with the key “normally law-abiding person” concept. In Study 1, for example, there was a tendency for jurors in the objective test condition to confuse the concept of the normally law-abiding person with that of the average person. In Study 2, jurors were much less likely to endorse the average person as the standard to be applied when deciding whether entrapment occurred under the two new instructions. In particular, there was a better understanding of the entrapment standard in the plain language instructions than in the standard objective test instructions.

In addition, jurors who heard the modified judicial instructions seemed to apply the law more appropriately as indicated by the correlations between jurors’ views that a normally law-abiding person would have been provoked to commit the same crime and jurors’ verdicts in the three objective test conditions. The correlation was substantial, negative, and larger in magnitude under the revised and plain-language objective test conditions than it was in the standard objective test condition. This finding is consistent with the argument that the revised objective test and the plain-language test instructions led to improved comprehension and subsequently improved application of the law. Moreover, jurors’ views of the normally law-abiding person were related to the type of verdict they ultimately reached. Stringent views of the normally law- abiding person were associated with harsher verdicts and more severe recom- mendations for sentencing. Therefore, jurors’ conceptions of the normally law-abiding person may play an important role in verdict decision making in entrapment cases, although it is not clear whether such views cause verdicts or reflect some sort of postdecision justification.

Future research should examine the degree to which comprehension of the legal instructions affects the application of the rules defined in the instructions. As others have indicated (Elwork et al., 1977; Severance & Loftus, 1982), the comprehension of judicial instructions is no guarantee that jurors will apply legal rules correctly. Thus, among jurors who incorrectly apply entrapment instructions to specific cases there will be two groups of jurors: One group


does not correctly comprehend the instructions about the entrapment rule, and the second group comprehends the entrapment instructions but misapplies the entrapment standard in specific cases. This is analogous to research on statistical judgments that has found that persons (even statistical experts) can understand, in theory, a statistical rule but can still misapply these statistical rules when solving particular problems (Kahneman, Slovic, 8z Tversky, 1982). Kahneman and Tversky (1982) have distinguished these two types of errors as “errors of comprehension” and “errors of application.” Thus, comprehension and application of legal instructions need to be investigated when studying juror comprehension of legal instructions.

Law reformers who favor the objective test have generally taken the position that the issue of entrapment should be decided by the judge, not the jury (Park, 1976). One reason for favoring this position is that the objective test is intended to have a prophylactic effect in controlling police conduct. Judges may be better able to administer a test whose purpose is to control methods of investigation; juries may take a shorter view, weighing fairness in individual cases rather than long-term effects. Earlier research (Borgida & Park, 1988) suggested that under the objective test, it might be appropriate to give the issue of entrapment to the judge instead of the jury because of the difficulty juries had understanding key concepts employed in objective test instructions (Park, 1984).

The present research (Study 2) indicates that some of these impediments to understanding can be reduced by revising the instructions. While jurors who received the revised or plain-language instructions in Study 2 did not demonstrate superior overall comprehension of the judge’s instructions, some improvement was noted in the comprehension of crucial legal concepts (e.g., the “normally law-abiding person”). Jurisdictions that currently use pattern instructions for the objective test may want to revise them so that the language is more comprehensible to jurors. Should comprehension problems persist, however, the entrapment question probably should be given to judges rather than to jurors (Borgida & Park, 1988).

Although the present research suggests that jurors can understand and apply the objective test reasonably well, other issues are also relevant to a policy choice between the objective and subjective tests. One such issue is whether the objective test, even when properly administered, would actually have a substantial effect in controlling the conduct of police officers and informers (Park, 1976). Another is whether that effect, if it exists, should be purchased at the cost of focusing solely on police conduct, rather than on the culpability of the individual defendant. Such an approach could lead to the conviction of defendants of relatively low culpability on grounds that they had yielded to inducements that were not coercive enough to tempt the hypothetical person.


For example, if a drug user sold a personal supply of drugs to an agent after a series of simple requests, she would not be entitled to acquittal under the objective test, even if she had never previously sold drugs. That person sold drugs when a normally law-abiding person would not do so. The objective test could also lead to acquittal of persons who were of high culpability on grounds that they had been subjected to improper inducements. For example, a defendant who had all of the paraphernalia of an established drug dealer might be acquitted on grounds that the agent made an improper appeal to sympathy. Formulation of policy on entrapment, as with other legal policy issues, requires consideration of many such issues, some but not all of which are empirical in nature.

References

Borgida, E., & Park, R. C. (1988). The entrapment defense: Juror comprehension and decision making. Law and Human Behavior, 12, 19-40.

Brown Commission Proposal. (1971). U. S. National Commission on Reform of Federal Laws, a proposed new federal criminal code. Washington, DC: U.S. Government Printing Office.

Charrow, R. P., & Charrow, V. R. (1979). Making legal language understandable: A psycholinguistic study of jury instructions. Columbia Law Review, 79, 1306- 1374.

Charrow, V. R. (1981). Linguistic theory and the study of legal and bureau- cratic language (Report No. 16). Washington, DC: National Institute of Education.

DeVitt, E. J., & Blackmar, C. B. (1977). Federal juvy practice and instructions. St. Paul, MN: West.

Elwork, A., Sales, B. D., & Alfini, J. J. (1977). Juridic decisions: In ignorance of the law or in light of it? Law and Human Behavior, 2, 163-189.

Elwork, A., Sales, B. D., & Alfini, J. J. (1982). Making jury instructions understandable. Charlottesville, VA: Michie.

Felsenfeld, C., & Siegel, A. (1981). Writing contracts in plain English. St. Paul, MN: West.

Gershman, B. L. (1982). Abscam, the judiciary, and the ethics of entrapment. The Yale Law Journal, 91, 1565-1591.

Gilbert, D., & Jones, E. E. (1986). Perceiver-induced constraint: Interpreta- tions of self-generated reality. Journal of Personality and Social Psychol-

Greene, E. (1988). Judge’s instruction on eyewitness testimony: Evaluation

Hamilton, V. L. (1978). Obedience and responsibility: A jury simulation.

ogy, 50,205-280.

and revision. Journal of Applied Social Psychology, 18,252-276.

Journal of Personality and Social Psychology, 36, 126-146.


Hays, W. (1981). Statistics. New York, NY: Holt, Rinehart, & Winston. Jones, E. E. (1979). The rocky road from acts to dispositions. American

Jones, E. E. (1986). Interpreting interpersonal behavior: The effects of expec-

Jones, E. E. (1990). Interpersonalperception. New York, NY: W. H. Freeman. Kahneman, D., Slovic, P., & Tversky, A. (Eds.). (1982). Judgment under

uncertainty: Heuristics and biases. New York, NY: Cambridge. Kahneman, D., & Tversky, A. (1982). On the study of statistical intuitions.

Cognition, 11, 123-141. Kassin, S. M. (1985, August). Juries and the doctrine of entrapment. Paper

presented at the American Psychological Association Convention, Los Angeles, CA.

Park, R. C. (1976). The entrapment controversy. Minnesota Law Review, 60,

Park, R. C. (1984). Comments on S. 804. Reprinted in Ser. No. 5-98-121. Hearing before the Subcommittee on Criminal Law of the Committee on the Judiciary, United States Senate, 98th Congress, 2nd Session. Washington, DC: U.S. Government Printing Office.

Park, R. J., & Freeman, M. (1 982, November). Contracts in plain language. Paper presented at FORUMS Professional Education Series, William Mitchell College of Law. St. Paul, MN: FORUMS.

Park, R. J., & Harvey, R. M. (1985). The plain language contract act. Bench and Bar of Minnesota, 42, 15-20.

Pascu v. State, 577 P.2d 1064, 1066-1067 (Alaska, 1978). Ross, L. (1977). The intuitive psychologist and his shortcomings: Distortions

in the attribution process. In L. Berkowitz (Ed.), Advances in experimental socialpsychology (Vol. 10, pp. 174-220). New York, NY: Academic.

Severance, L. J., & Loftus, E. F. (1982). Improving the ability of jurors to comprehend and apply criminal jury instructions. Law and Society Review,

Sherman, S . J., & Corty, E. (1985). Cognitive heuristics. In R. Wyer, Jr., & T. Srull (Eds.), Handbook of social cognition (pp. 189-286). Hillsdale, NJ: Lawrence Erlbaum.

Psychologist, 34, 107- 1 17.

tancies. Science, 234,4 1-46.

163-274.

17, 153-198.

Sherman v. United States, 356 U.S. 369 (U.S., 1958). State v. Cripps, 692 P.2d 747, 749 (Utah, 1984). State v. Taylor, 599 P.2d 496 (Utah, 1979).


Appendix A

Entrapment Instruction Questions

1. The judge’s instructions indicated that even if the defendant knowingly sold cocaine, he should be found not guilty of the crime of distribution of cocaine if a. the cocaine was furnished to the defendant by a law enforcement agent. b. the defendant had no previous intent or purpose to violate the law, but

was persuaded by law enforcement officers or their agents to commit a crime. [SUBJECTIVE]

c. a government agent engaged in conduct that would persuade someone who normally would not sell narcotics to others to sell them in this situation. [OBJECTIVE]

d. under the facts of the case it would not be fair to convict the defendant of the crime of distribution of cocaine.

2. Under the law as explained in the judge’s instructions, the defendant would be entitled to acquittal if a. he was not ready and willing to commit the offense until he was induced

to do so by law enforcement agents. If the defendant was not personally ready and willing to commit the offense before the inducement, he would be entitled to acquittal. He would be entitled to acquittal even though it might cause an average person to commit the offense. [SUB- JECTIVE]

b. the law enforcement agents used an inducement that might persuade someone who normally would not sell the cocaine to commit the offense. [OBJECTIVE]

c. the inducement used might have caused an average person to commit the offense. It does not matter whether the defendant himself was ready and willing to commit the offense.

d. the defendant could not have obtained the cocaine if it had not been furnished to him by someone cooperating with a law enforcement agent.

3. According to the judge’s instructions, even ifyou do find that the defendant sold cocaine, you should find the defendant not guilty of distribution if a. the government’s actions here would have induced a drug addict who

b. the government’s actions would have induced an average person to sell

c. the government’s actions here would have induced you to sell cocaine. d. the defendant was not ready and willing to sell cocaine to Agent Young

normally would not sell cocaine to do so. [OBJECTIVE]

cocaine.

before Young approached him. [SUBJECTIVE]


4. According to the judge’s instructions, even if you do find that the defendant sold or distributed cocaine, you should find the defendant not guilty unless you find beyond a reasonable doubt that a. Dean sent Pinewood to Mexico to buy cocaine. b. the defendant was ready and willing to sell or distribute cocaine before

Agent Young approached him. [SUBJECTIVE] c. the defendant had sold or distributed drugs in the past. d. the government’s actions would not have caused persons who normally

do not sell cocaine to sell it under the present circumstances. [OBJEC- TIVE]

5. Under the law as explained in the judge’s instruction, the defendant would be entitled to acquittal if a. he personally was not ready and willing to sell cocaine and was per-

suaded to do so by law enforcement agents. [SUBJECTIVE] b. he did not have the intent to sell this particular cocaine before law

enforcement officers induced him to do so. If he did not intend to make this particular sale before he was contacted by law enforcement officers, then he has a valid defense even if he was ready and willing to sell cocaine to other persons.

c. law enforcement officers used methods that might cause a person who normally would not commit such a crime to do so in this case. If law enforcement agents used methods of this type, then the defendant would be entitled to acquittal even if he personally was a regular drug seller who was ready and willing to sell drugs. [OBJECTIVE]

d. the law enforcement officers’ actions would have caused the average person to commit the crime.

Note. Correct answers under either the subjective or objective test instruction are indicated in brackets.


Appendix B

Revised Objective Test Instructions

A law enforcement agent has committed entrapment if he or she uses an unfair method of persuasion. A method of persuasion is unfair if it is a method that is likely to cause a normally law-abiding person to commit the crime. A normally law-abiding person is a person who would usually not commit that sort of crime, even though he might sometimes want to do so. For example, suppose that a person is taking treatment for addiction to drugs. He sometimes wants to use drugs, but he is working hard to stay away from them. Then, an undercover agent meets the person and offers him money to buy some drugs for the agent. The person says no, but the agent keeps on asking, saying that he needs the drugs very much. Finally, the agent persuades the person to sell the drugs. The undercover agent has committed entrapment. He used methods that were likely to persuade a normally law-abiding person to commit the crime. A person can be normally law abiding even if he has a greater weakness for a certain type of crime than the average person.

When you decide whether the method used here was unfair, do not base your decision on whether the method would persuade you to commit the crime or whether it would persuade an average, ordinary person to commit the crime. Decide whether it would be likely to persuade someone who had a weakness for the crime but who would normally not commit the crime.

The question here is whether the agent used unfair methods, not whether the defendant was ready and willing to commit the crime. Sometimes it may be necessary to take into account what the defendant said and did in deciding whether the agent used unfair methods. However, remember that the final issue is whether the agent used unfair methods, not whether this defendant already was willing to commit the crime before the agent made contact with him.

It is not unfair for an agent merely to give the suspect an opportunity to commit a crime. For example, in a narcotics case, it is not unfair for an agent merely to ask for drugs as part of his undercover work. However, if an agent goes beyond merely asking, then the jury must decide whether the agent has used unfair methods. If you find that the agent used unfair methods, then you should return a verdict of not guilty.


Appendix C

Plain-Language Objective Test Instructions

First, what is entrapment? Under the law, a person cannot be found guilty if that person was entrapped into committing a crime. A person is entrapped when law enforcement agents use unfair methods to persuade that person to commit a crime.

Second, why is entrapment against the law? The idea behind the entrapment rule is that law enforcement agents should be careful not to use unfair methods of persuasion. They will be more careful if they know that what they do might cause a defendant to go free.

Third, what types of methods are unfair? Examples of unfair methods of persuading someone to commit a crime include threats, harassment, badgering, appealing to sympathy, and offering unusually large sums of money.

It is not against the law for a law enforcement agent who is doing undercover work to ask a person to sell narcotics in order to gather evidence against that person. Just asking is not unfair, but law enforcement agents must not go too far or push too hard.

When you decide whether the method used here was unfair, do not base your decision on whether the method would persuade you to commit the crime or whether it would persuade an average, ordinary person to commit the crime. Decide whether it would persuade someone who had a weakness for the crime but who would normally not commit the crime.

Does it matter whether the defendant was ready and willing to commit the crime? No, it does not. The question is whether the methods used were unfair, not whether the defendant was ready and willing. If you find that the law enforcement agents used unfair methods, then you should find the defendant not guilty. This is true even if the defendant was ready and willing to commit the crime.

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Improving Juror Comprehension of Judicial Instructions on the Entrapment Defense1

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