Difference between instigation and entrapment

In instigation, the criminal plan or design exists in the mind of the law enforcer with whom
the person instigated cooperated so it is said that the person instigated is acting only as a
mere instrument or tool of the law enforcer in the performance of his duties.
 On the other hand, in entrapment, a criminal design is already in the mind of the person
entrapped. It did not emanate from the mind of the law enforcer entrapping him.
Entrapment involves only ways and means which are laid down or resorted to facilitate the
apprehension of the culprit.
The element which makes instigation an absolutory cause is the lack of criminal intent as an
element of voluntariness.
If the instigator is a law enforcer, the person instigated cannot be criminally liable, because
it is the law enforcer who planted that criminal mind in him to commit the crime, without
which he would not have been a criminal.  If the instigator is not a law enforcer, both will be
criminally liable, you cannot have a case of instigation.  In instigation, the private citizen
only cooperates with the law enforcer to a point when the private citizen upon instigation of
the law enforcer incriminates himself.  It would be contrary to public policy to prosecute a
citizen who only cooperated with the law enforcer.  The private citizen believes that he is a
law enforcer and that is why when the law enforcer tells him, he believes that it is a civil
duty to cooperate.
If the person instigated does not know that the person is instigating him is a law enforcer or
he knows him to be not a law enforcer, this is not a case of instigation.  This is a case of
inducement, both will be criminally liable.
In entrapment, the person entrapped should not know that the person trying to entrap him
was a law enforcer.  The idea is incompatible with each other because in entrapment, the
person entrapped is actually committing a crime.  The officer who entrapped him only lays
down ways and means to have evidence of the commission of the crime, but even without
those ways and means, the person entrapped is actually engaged in a violation of the law.
Instigation absolves the person instigated from criminal liability. This is based on the rule
that a person cannot be a criminal if his mind is not criminal.  On the other hand,
entrapment is not an absolutory cause.  It is not even mitigating.
In case of somnambulism or one who acts while sleeping, the person involved is definitely
acting without freedom and without sufficient intelligence, because he is asleep.  He is
moving like a robot, unaware of what he is doing.  So the element of voluntariness which is
necessary in dolo and culpa is not present.  Somnambulism is an absolutory cause.  If element
of voluntariness is absent, there is no criminal liability, although there is civil liability, and if
the circumstance is not among those enumerated in Article 12, refer to the circumstance as
an absolutory cause.
Mistake of fact is an absolutory cause.  The offender is acting without criminal intent.  So in
mistake of fact, it is necessary that had the facts been true as the accused believed them to
be, this act is justified.  If not, there is criminal liability, because there is no mistake of fact
anymore.  The offender must believe he is performing a lawful act.
 

Extenuating circumstances
The effect of this is to mitigate the criminal liability of the offender.  In other words, this
has the same effect as mitigating circumstances, only you do not call it mitigating because
this is not found in Article 13.
 
Illustrations:
An unwed mother killed her child in order to conceal a dishonor.  The concealment of
dishonor is an extenuating circumstance insofar as the unwed mother or the maternal
grandparents is concerned, but not insofar as the father of the child is concerned.  Mother
killing her new born child to conceal her dishonor, penalty is lowered by two degrees.  Since
there is a material lowering of the penalty or mitigating the penalty, this is an extenuating
circumstance.
The concealment of honor by mother in the crime of infanticide is an extenuating
circumstance but not in the case of parricide when the age of the victim is three days old and
above.
In the crime of adultery on the part of a married woman abandoned by her husband,  at the
time she was abandoned by her husband, is it necessary for her to seek the company of
another man.  Abandonment by the husband does not justify the act of the woman. It only
extenuates or reduces criminal liability.  When the effect of the circumstance is to lower the
penalty there is an extenuating circumstance.
A kleptomaniac is one who cannot resist the temptation of stealing things which appeal to his
desire.  This is not exempting.  One who is a kleptomaniac and who would steal objects of his
desire is criminally liable.  But he would be given the benefit of a mitigating circumstance
analogous to paragraph 9 of Article 13, that of suffering from an illness which diminishes the
exercise of his will power without, however, depriving him of the consciousness of his act.  So
this is an extenuating circumstance.  The effect is to mitigate the criminal liability.
Distinctions between justifying circumstances and exempting circumstances
In justifying circumstances –
(1)                 The circumstance affects the act, not the actor;
(2)                 The act complained of is considered to have been done within the bounds of
law; hence, it is legitimate and lawful in the eyes of the law;
(3)                 Since the act is considered lawful, there is no crime, and because there is
no crime, there is no criminal;
(4)                 Since there is no crime or criminal, there is no criminal liability as well as
civil liability.
In exempting circumstances –
(1)                 The circumstances affect the actor, not the act;
(2)                 The act complained of is actually wrongful, but the actor acted without
voluntariness.  He is a mere tool or instrument of the crime;
(3)                 Since the act complained of is actually wrongful, there is a crime.  But
because the actor acted without voluntariness, there is absence of dolo or culpa.  There is no
criminal;
(4)                 Since there is a crime committed but there is no criminal, there is civil
liability for the wrong done.  But there is no criminal liability.  However, in paragraphs 4 and
7 of Article 12, there is neither criminal nor civil liability.
When you apply for justifying or exempting circumstances, it is confession and avoidance and
burden of proof shifts to the accused and he can no longer rely on weakness of prosecution’s
evidence.

                [1]The difference between murder and homicide will be discussed in Criminal Law
II.  These crimes are found in Articles 248 and 249, Book II of the Revised Penal Code.

                [2] The difference between theft and robbery will be discussed in Criminal Law II. 
These crimes are found in Title Ten, Chapters  One and Three, Book II of the Revised Penal
Code.