The two most recent Supreme Court cases on the entrapment defense are Mathews v. United States, 485 U.S. 58, 63 (1988) and Jacobson v. United States, 503 U.S. 540, 548 (1992). In Mathews, 485 U.S. at 62, the Court held that a defendant who denies commission of the crime is entitled to an entrapment instruction as long as there is sufficient evidence from which a reasonable jury could find entrapment. Thus, a defendant may raise inconsistent defenses, arguing that he did not commit the crime but that, if he did commit it, he was entrapped.
Although entrapment is generally a jury question, Mathews, 485 U.S. at 63, the Court found entrapment as a matter of law in Jacobson, 503 U.S. at 550, where the defendant ordered child pornography after "he had already been the target of 26 months of repeated mailings and communications from Government agents and fictitious organizations." In the Court's view, the government had failed to prove beyond a reasonable doubt that Jacobson's predisposition "was independent and not the product of the attention that the [g]overnment had directed at [him][.]" Ibid. The unusual facts of Jacobson make it distinguishable from most sting operations, which involve fewer contacts with a defendant over a shorter period of time. Also, the Jacobson Court confirmed that its analysis was not "an innovation in entrapment law[.]" Id. at 549 n. 2.
[cited in JM 9-18.000]