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How to Free a ‘Guilty’ Client by Arguing Entrapment by Estoppel
By Daniel E. Monnat; Paige A. Nichols
[F]or the state to prosecute someone for innocently acting upon …
mistaken [official] advice is akin to throwing water on a man and
arresting him because he’s wet.
People v. Studifin1
How many times have you wished that you could just stomp your foot in
court and declare, “That’s not fair!”? Well guess what? You can! (Though
we recommend against the foot stomping.) In the right case, you may ask
your judge or jury to acquit your “guilty” client — a client who
engaged in every element of the charged offense — because it is simply
not fair for the government to prosecute your client. This is not a
request for jury nullification. This is an entrapment by estoppel
defense.
Entrapment by Estoppel
Entrapment by estoppel is a common law due process defense to criminal
charges when an official advises the defendant that conduct is legal,
and the defendant reasonably believes the official. This is a venerable
defense, originating half a century ago in Raley v. Ohio.2
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