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The Champion

December 2010 , Page 30 

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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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