Entrapment is a complete defense to a criminal charge, on the theory that government agents may not create a criminal scheme, encourage an innocent person to commit the crime, and then induce the commission of the crime—all so the government can prosecute the crime.

Criminal offenses such as the sale of narcotics and the bribery of public officials are generally committed by persons working together to achieve a criminal objective—as opposed to crimes that are committed against an unwilling victim. This often makes these consensual crimes more difficult to prosecute. To deter this criminal behavior, undercover police or FBI agents (or a person who has “flipped” and is working with the government) may encourage suspected persons to engage in the criminal behavior.

When criminal charges are filed to prosecute these crimes involving a government agent, the defendant often believes he was entrapped and that he may rely on the entrapment defense to avoid a conviction for the crime. When considering an entrapment defense, the first question is whether the criminal offense was induced by a government agent. And if the government has induced the defendant to break the law, the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act before being approached by the government agent.

If the prosecution can prove the defendant was ready and willing to commit the crime whenever the opportunity was presented, the defendant will not be able to rely on the entrapment defense. But if the government’s pursuit of a criminal conviction leads to charges against an otherwise law-abiding citizen who, if left to his own devices would likely not violate the law, the defendant may rely on the entrapment defense to avoid being convicted of the crime.

In New Hampshire, entrapment occurs when a government agent induces a person to commit a crime that they would not have otherwise been predisposed to commit. The entrapment defense can be a complete defense to a criminal charge if it can be demonstrated that the government's conduct created the criminal scheme and persuaded an otherwise innocent person to commit the crime for the purpose of prosecuting that crime. This defense is particularly relevant in cases involving consensual crimes such as narcotics sales or bribery, where undercover agents or informants may be used to detect and deter criminal activity. To successfully claim entrapment in New Hampshire, the defendant must show that the initiation of the criminal conduct came from the government agent, not from the defendant. If the prosecution can prove beyond a reasonable doubt that the defendant was already willing to commit the crime before the government agent's involvement, the entrapment defense will not succeed. Conversely, if the defendant was not predisposed to commit the crime and only did so because of the government's encouragement, entrapment may be a viable defense.