One accused of the crime of bribery does not have many defenses available to him/her in a prosecution proceeding against him/her. Entrapment of the accused is one defense available. An accused can also contend that all the elements constituting the offence of bribery have not been sufficiently proved. A person who offers a bribe and who receives a bribe are equally liable in the crime. A person who gives a bribe can claim coercion as a defense. So if someone pays a bribe because he/she was coerced, such person cannot be treated as a party to the crime[i].
An agreement to pay a bribe is not legally enforceable but the parties to the promise cannot escape penal liability[ii]. Non enforceability of a promise to pay a bribe cannot be taken as a defense in a bribery proceeding. It is also not a defense that a person who offered a bribe is an artificial person or a non existing person. The fact that the action of the accused could be charged under another offence also is not a defense available in the prosecution for bribery. A practice existing in the industry of giving gratuities to government agents is not a defense in a proceeding for giving a bribe.
Generally, courts have denied accepting the defense of entrapment. Entrapment is a scheme by which a person is trapped by other persons to commit the crime of bribery, either to offer or accept a bribe. Though entrapment is not usually accepted as a defense, the defense is available in certain cases[iii]. There should be evidence as to the fact that the official was induced by a person, who with or without the knowledge of the trap was forced by government officials to grant the bribe. Courts usually investigate if a person was inclined to accept a bribe or induced to commit the crime. A jury will be instructed on the defense of entrapment only if there is evidence that shows persuasion from the government agent’s side. Also, evidence as to reluctance from the part of the accused to commit the crime can be given to counter the predisposition alleged on the accused[iv].
[i] People v. Koopalethes, 166 A.D.2d 458 (N.Y. App. Div. 2d Dep’t 1990)
[ii] Peccole v. McNamee, 70 Nev. 298 (Nev. 1954)
[iii] United States v. Luisi, 482 F.3d 43 (1st Cir. Mass. 2007)
[iv] United States v. Kidd, 734 F.2d 409 (9th Cir. Cal. 1984)