This Note examines the effects of a defendant's claim of lack of "positional disposition" (i.e., the inability to commit the crime unaided) to support an entrapment defense.

The solution to the positional predisposition dispute requires answering two questions. First, on what grounds should criminal ability be considered at all by a court in determining a defendant's predisposition? Second, if ability is probative of predisposition, what degree of inability should be required for exculpation? This Note argues that a defendant's criminal ability is probative of that defendant's predisposition, and further, that a defendant's inability should be exculpatory to the degree that exculpation would be appropriate in cases of impossibility under criminal attempt law.

Part II of this Note provides the setting. It reviews the facts and judicial opinion of the most well-known positional predisposition case, United States v. Hollingsworth. Then, Part III demonstrates the logic behind exculpating defendants for their inability. In summary, Part III reasons that, because the entrapment defense's purpose is to determine the culpability of the defendant, the defendant's criminal ability should be considered since it is probative of culpability. Part IV then addresses the concern that exculpation for all criminal inability may be too broad, since attempt law, in general, punishes unable defendants. Thus, Part IV argues that exculpation for criminal inability should be permitted only to the extent that such exculpation is permitted in cases of impossible criminal attempts. As will be demonstrated in Part IV, only a small category of impossible attempts, inherently impossible attempts, warrant a dismissal of criminal liability.

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