Constitutional and Legislative Issues Raised by the Entrapment Defense in Maine

In recent years the increase in undercover investigative activity by police agents has generated considerable interest in the defense of entrapment. The entrapment defense to a criminal prosecution has been recognized either judicially or legislatively in most jurisdictions in the United States. The proper formulation of the defense, however, has given rise to conflicting opinions involving various evidentiary and constitutional considerations. In raising the defense of entrapment, a defendant does not deny that he committed the acts constituting the crime, but rather asserts that, on grounds of public policy, he should not be convicted. In Maine, the defense of entrapment has been recognized by the state's highest court since 1946. Prior to its recent decision in State v. Matheson, the Supreme Judicial Court had discussed entrapment in language that could be construed to support the use of either the subjective or objective test. In Matheson, however, the court explicitly adopted the subjective test. This Note discusses the confusion surrounding the early Maine entrapment cases and the evidentiary and constitutional issues attending adoption of the subjective formulation. Compelling policy considerations support a statutory adoption and reformulation of the entrapment defense in Maine. The omission of an entrapment defense from the Maine Criminal Code, despite legislative enactment in many other states, coupled with the danger inherent in the Matheson formulation, merits prompt legislative action. In order to remedy the defects of the subjective test as presently applied by the Maine court, the Maine Legislature should enact the objective test as proposed by the Model Penal Code or limit the types of evidence admissible to prove predisposition under the subjective formulation of the Matheson court.