Entrapment as a Defense

Entrapment is one of the most commonly known defenses to criminal liability.  But, what does it actually mean?  And when does it apply?  In this blog post, criminal defense attorney Benjamin Van Severen explains what entrapment is.  He also explains common crimes where entrapment can be used.

Procedure for the Entrapment Defense

The accepted definition of entrapment comes from State v. Hochman, a 1957 Wisconsin Supreme Court case.  The Hochman court explained that entrapment is an available defense when a law enforcement officer uses improper methods to induce a defendant to commit crime they were not otherwise disposed to commit.

First, the burden is on the defendant to show that there was inducement.  To create a factual issue, the defendant is only required to show “slight evidence” of inducement.  United States v. Kessee.  Furthermore, the evidence may be “weak, insufficient, inconsistent or of doubtful credibility.  United States v. Sotlo-Murillo.

Defense’s Burden

A jury must first consider whether the police induced the defendant to commit the crime.  The common dictionary definition of induce is “to move by persuasion or influence.”  Simply stated, inducement means the police persuaded or influenced the defendant to commit the crime.  However, the Hochman court limited this definition. It explained that simply providing the opportunity to commit the crime is not the same as inducing someone to commit the crime.

Additional court cases (State v. Hillesheim; State v. Bjerkaas) have explained that it is not improper for police to pretend to be someone else and to offer the opportunity to commit the offense.  For example, if an undercover police officer is offering to sell drugs to someone, they are not necessarily inducing the purchaser to buy the drugs.  Rather, they are merely creating the opportunity for the purchaser to buy the drugs.

Prosecutor’s Burden

If the jury is satisfied that the police induced the defendant to commit the crime, then the burden shifts to the prosecutor to prove that there was no entrapment.  The prosecutor can prove that there was no entrapment in two ways.  First, that the inducement was not excessive.  Second, that the defendant was predisposed to commit the crime.

Excessive inducement includes excessive enticement, urging, persuasion, or temptation.  It is excessive when the police action is going to induce the commission of the crime by someone not already disposed to commit that crime.  However, some inducement or encouragement is permissible.  It is up to the jury to decide whether or not there is excessive inducement.  It is the state’s burden to prove to the jury that there was not excessive inducement.

There is no entrapment if the defendant was already predisposed to commit the crime.  If the jury determines that the defendant was already predisposed to commit the crime, then there is no entrapment.  This is regardless of the level of inducement by law enforcement.  Again, it is the state’s burden to prove that the defendant was already predisposed to commit the crime.  Moreover, jury will be instructed to consider the defendant’s background, the nature of the inducements by law enforcement, and all other circumstances surrounding the offense.

Certainly the defense of entrapment is only considered by the jury if they are satisfied beyond a reasonable doubt that the defendant committed all of the elements of the crime.  If the jury does not think the defendant committed the crime at all, then they should not consider entrapment.  Rather, they should simply find the defendant not guilty.

Federal v. State Law

In federal court, a defendant can deny he committed the crime while still claiming the entrapment defense.  The Supreme Court in Matthews v. United States stated that a defendant is entitled to claim any defense “for which there exists evidence sufficient for a reasonable jury to find in his favor.”  However, Wisconsin courts tend to take the opposite view.  The Wisconsin courts seem to say that when a defendant wants to use the entrapment defense, he cannot also argue that he did not commit the crime.  Under this theory, the entrapment defense essentially means “I committed the crime, but I only did so because I was entrapped.”  Stated another way, “if it weren’t for the police action, I would not have committed the crime.”

Entrapment is a legal defense.
Entrapment is a legal defense in Wisconsin.

Common Entrapment Crimes

In any criminal charge, an entrapment defense is feasible.  That being said, in a few specific situations we frequently encounter entrapment:


Finally – if you are facing criminal charges and believe that you have been entrapped by law enforcement, you need experienced criminal defense attorneys on your side.  The criminal defense attorneys at Van Severen Law Office, S.C. are well versed in the law of entrapment and will be able to assist you in defending your case.  Contact one of our criminal defense attorneys today!


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