Minnesota Law Review

Entrapped: A Reconceptualization of the Obedience to Orders Defense

“I was just following orders,” and, “The government made me do it,” are phrases from two different criminal law defenses: obedience to orders and entrapment. A military defense, obedience to orders allows a soldier to escape liability by arguing that she was obeying orders when she committed the supposed crime. The civilian defense of entrapment allows a defendant to escape liability by arguing that the police pressured her to commit the crime. Despite the fact that both defenses require a level of government involvement, courts and scholars alike have treated these defenses differently. This Article finally addresses this inconsistency and reorients obedience to orders to more closely resemble entrapment.
Currently, obedience to orders carries dual subjective and objective requirements, similar to other civilian criminal law defenses such as mistake of law and duress. A defendant must have a good faith belief and, more importantly, this belief must pass a reasonable person standard. The purpose behind objectively scrutinizing the defendant’s state of mind is to promulgate a uniform community standard for private citizens. But unlike obedience to orders, where disobeying an order could lead to criminal sanction, neither mistake of law nor duress involves any level of government pressure or coercion.
Entrapment serves as the better model for this defense because both entrapment and obedience to orders involve government agents pressuring citizens to commit crimes. Courts use two different tests for entrapment, but neither carries an objective scrutiny component targeting the defendant’s state of mind. The rationale here centers on the fact that the government plays a key role in the crime, so there is less reason to promulgate a uniform community standard. The same respective tests and underlying reasoning should apply with equal or greater force in the obedience to orders case. This Article presents the first workable reconceptualization along these lines—one that better serves soldiers caught between disobeying an order and committing a crime.

:: View PDF

De Novo

  • Case Comment: Bhogaita v. Altamonte

    EVERY DOG CAN HAVE HIS DAY IN COURT: THE USE OF ANIMALS AS DEMONSTRATIVE EXHIBITS Kyle R. Kroll, Volume 100, Online Managing Editor In Bhogaita v. Altamonte, the Eleventh Circuit recently decided whether to allow a dog in the courtroom as a demonstrative exhibit.[1] Although the case presented many serious [...]

  • Revisiting Water Bankruptcy

    REVISITING WATER BANKRUPTCY IN CALIFORNIA’S FOURTH YEAR OF DROUGHT Olivia Moe, Volume 100, Managing Editor This spring, as “extreme” to “exceptional” drought stretched across most of California—indicating that a four-year streak of drought was not about to resolve itself[1]—Governor Jerry Brown issued an unprecedented order to reduce potable urban water [...]

  • Defying Auer Deference

    DEFYING AUER DEFERENCE: SKIDMORE AS A SOLUTION TO CONSERVATIVE CONCERNS IN PEREZ v. MORTGAGE BANKERS ASSOCIATION Nicholas R. Bednar, Volume 100, Lead Articles Editor* On March 9, 2015, the Supreme Court of the United States handed down its decision in Perez v. Mortgage Bankers Association.[1]F The Court overturned the D.C. [...]