Entrapment vs. Instigation

Bar Exam Question (1995)

Distinguished entrapment from Instigation.

Suggested Answer:

In INSTIGATION, the instigator practically induces the prospective accused into commission of the offense and himself becomes co-principal. In ENTRAPMENT, ways and means are resorted to for the purpose of trapping and capturing the lawbreaker while executing his criminal plan.

Instigation: Bar Exam Question (1995) 

Suspecting that Juan was a drug pusher, SPO2 Mercado, leader of the Narcom team, gave Juan a Php l00-bill and asked him to buy some marijuana cigarettes. Desirous of pleasing SPO2 Mercado, Juan went inside the shopping mall while the officer waited at the corner of the mall. After fifteen minutes, Juan returned with ten sticks of marijuana cigarettes which he gave to SPO2 Mercado who thereupon placed Juan under arrest and charged him with violation of The Dangerous Drugs Law by selling marijuana cigarettes. Is Juan guilty of any offense punishable under The Dangerous Drugs Act? Discuss fully.

Suggested Answer:

Juan cannot be charged of any offense punishable under The Dangerous Drugs Act. Although Juan is a suspected drug pusher, he cannot be charged on the basis of a mere suspicion. By providing the money with which to buy marijuana cigarettes, SPO2 Mercado practically induced and prodded Juan to commit the offense of illegal possession of marijuana. Set against the facts instigation is a valid defense available to Juan.

Bar Exam Question (2003)

Entrapment vs. Instigation (2003)

Distinguish fully between entrapment and instigation in Criminal Law, Exemplify each. 

Suggested Answer:


1. the criminal design originates from and is already in the mind of the lawbreaker even before


2. the law enforcers resort to ways and means for the purpose of capturing the lawbreaker in flagrante delicto- and

3. this circumstance is no bar to prosecution and conviction of the lawbreaker.


1. the idea and design to bring about the commission of the crime originated and developed in the mind of the law enforcers;

2. the law enforcers induce, lure, or incite a person who is not minded to commit a crime and would not otherwise commit it, into committing the crime; and

3. this circumstance absolves the accused from criminal liability (People v. Dante Marcos, 185 SCRA 154. [1990]).

Example of Entrapment:

A, an anti-narcotic agent of the Government acted as a poseur buyer of shabu and negotiated with B, a suspected drug pusher who is unaware that A is a police officer. A then issued marked money to B who handed a sachet of shabu to B. Thereupon, A signaled his anti-narcotic team to close-in and arrest B. This is a case of entrapment because the criminal mind is in B already when A transacted with him.

Example of Instigation:

Because the members of an anti-narcotic team are already known to drug pushers. A, the team leader, approached and persuaded B to act as a buyer of shabu and transact with C, the suspected drug pusher. For the purpose, A gave B marked money to be used in buying shabu from C. After C handed the sachet of shabu to B and the latter handed the marked money to C, the team closed-in and placed B and C under arrest. Under the facts, B is not criminally liable for his participation in the transaction because he was acting only under instigation by the law enforcers.