O serie de provocări în sfera provocării nelegitime
Some challenges in the realm of entrapment

Summary/Abstract: Entrapment is a standalone source for unlawful procurement of judicial evidence. Hence, it designates a particular category of unlawfully gathered evidence. Under the positive law into force, the tainted evidence gathered by means of entrapment is subject to a statutory categorical exclusionary rule. The challenges of entrapment arise in connection with the following aporia: whether the application of the adamant normative decision to exclude unlawfully gathered evidence, which falls under this category, will rule out judicial discretion, or, on the contrary, it will rather imply it, even to a high degree, when it comes to qualification of law enforcement authorities’ conduct according to the abstract pattern set forth under the exclusionary norm. Although one could consider it counterintuitive, we advocate that the latter part of the assertion is underpinned by more compelling reasons that the former. Therefore, the entrapment doctrine should focus on generating the lines of argument – not the catchphrases – which enable us to cast some light on the narrow border between the proactive investigation of a crime – legitimate entrapment – and its unlawful creation by means of entrapment. We will argue that the retrospective confirmation or disconfirmation of the reasonable suspicion is of the essence; it could be used as an efficient tool of analysis to conclude if the defendant was already engaged in offending or not, when approached either by an undercover agent or by an informant acting under the coordination of the authorities, and thus, could not be illegitimately entrapped in any instance. But this leads to a further challenge: any finding of fact regarding the involvement of the defendant in offending is not probabilistic, hence it links retrospective confirmation or disconfirmation with the very core of the criminal charge brought against the defendant; as such, exclusionary remedy for unlawfully evidence gathered by entrapment is to be decided by the trial jurisdiction only, along with the verdict on the merits, in order to preserve the general fair trial guarantee of impartiality. Against the background of the foregoing lines of argument, it is rational to express our skepticism about the efficiency of the automatic exclusionary rule regarding unlawful evidence gathered by entrapment. Hence, we advocate that another peremptory remedy – regarding the validity of the criminal charge underpinned by such tainted evidence, rather than the inculpatory evidence – would fit better the multifaceted rationale of a modern entrapment doctrine, promoting a hybrid model which combines authorities centered elements, grounded on deterrence, judicial integrity and the rule of law, on the one side, along with defendant centered elements, grounded on human rights protection, on the other side.

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