Dear PAO,

May I know the legal definition of entrapment and instigation? Are they the same? If so, is it legal?

Dwayme

Dear Dwayme, Entrapment is conducted to catch the offender in flagrante delicto, or in the act of committing the offense. Since the offender performs the overt act, sans persuasion in the presence of a law enforcer during an entrapment, the warrantless arrest of the perpetrator is justified (as reiterated in People v. Valencia, GR 234013, June 16, 2021, penned by Associate Justice Marvic Leonen).

As further discussed in the aforementioned jurisprudence, citing Chang v. People, the Supreme Court elucidated the nature of an entrapment as opposed to instigation:

“There is entrapment when law officers employ ruses and schemes to ensure the apprehension of the criminal while in the actual commission of the crime. There is instigation when the accused is induced to commit the crime. The difference in the nature of the two lies in the origin of the criminal intent. In entrapment, the mens rea originates from the mind of the criminal. The idea and the resolve to commit the crime comes from him. In instigation, the law officer conceives the commission of the crime and suggests to the accused who adopts the idea and carries it into execution.” (Emphasis and underscoring supplied)

The foregoing dictates that there is instigation whenever the accused is induced to commit the crime. In the latter instance, the law officer conceives the commission of the crime and suggests it to the accused, who adopts the idea and carries it into execution.

In People v. Mendoza (GR 220759, July 24, 2017) penned by Chief Justice Diosdado Peralta, the Supreme Court, quoting People v. Dansico, says:

“Instigation means luring the accused into a crime that he, otherwise, had no intention to commit, in order to prosecute him. On the other hand, entrapment is the employment of ways and means in order to trap or capture a lawbreaker. Instigation presupposes that the criminal intent to commit an offense originated from the inducer and not the accused who had no intention to commit the crime and would not have committed it were it not for the initiatives by the inducer. In entrapment, the criminal intent or design to commit the offense charged originates in the mind of the accused; the law enforcement officials merely facilitate the apprehension of the criminal by employing ruses and schemes. In instigation, the law enforcers act as active co-principals. Instigation leads to the acquittal of the accused, while entrapment does not bar prosecution and conviction.” (Emphasis and underscoring supplied)

To determine whether there is instigation or entrapment, People v. Doria (GR 125299, Jan. 22, 1999, penned by Chief Justice Reynato Puno) dictates that the conduct of the apprehending officers, and the predisposition of the accused to commit the crime must be examined.

At any rate, the foregoing shows that the two concepts are diametrically opposed. Therefore, while entrapment has been sanctioned as a means of arresting offenders, the same does not hold true whenever there is an instigation, precisely because, the latter is deemed illegal.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.