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 Wisconsin, entrapment is recognized as a defense to criminal charges when it is believed that the government, through its agents, created a criminal scheme and induced an otherwise innocent person to commit a crime for the purpose of prosecuting that crime. The key consideration for this defense is whether the defendant was induced by a government agent to commit the offense. If entrapment is claimed, the burden is on the prosecution to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime prior to any contact with government agents. This means showing that the defendant was ready and willing to commit the crime at any opportune moment. If the prosecution cannot establish predisposition, and it is demonstrated that the defendant would not have engaged in the unlawful conduct but for the government's instigation, the entrapment defense may be successfully employed to avoid a conviction. It is important for defendants considering this defense to consult with an attorney to understand how it might apply to their specific case under Wisconsin law.