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Entrapment Defense in Wisconsin - What needs to be Proved?


Entrapment is a legal defense that basically says the defendant wouldn't have committed the alleged crime if law enforcement had not tricked them into committing it.

This defense was created to prevent law enforcement from using deceptive measures just to gather evidence and convict people.

What Needs to Be Proved?

There is an important distinction when it comes to entrapment, and that's the difference between entrapment and opportunity. Law enforcement officials are legally allowed to create the opportunity for a person to commit a crime. For example, this happens a lot with police prostitution stings when an officer will go undercover as a prostitute and try to get a person to agree to exchange money for sex. This is perfectly legal.

Entrapment is when law enforcement officials use reprehensible behavior that directly leads to a person committing a crime. This behavior can include:

  • Harassment
  • Threats
  • Flattery

Looking back at our prostitution sting example, it would be entrapment if the undercover officer pulled out a weapon and threatened to shoot the person if they refused to have sex with them for money. Such action would certainly be illegal.

Standards & Burden of Proof

When it comes to defending a case using entrapment, there are two primary standards used to make a ruling as to whether or not entrapment was a factor:

  • An objective standard requires the jury to consider if the officer's actions in the case would have resulted in a normal person breaking the law.
  • A subjective standard forces the jury to consider whether the defendant was predisposed to break the law.

Each state employs one of these two standards when considering an entrapment defense.

The burden of proof for an entrapment defense rests on the defendant. It is the defendant's responsibility (or the responsibility of their attorney) to prove beyond a reasonable doubt that a government agent's actions constituted entrapment. As a result, entrapment is often a difficult defense to win - though not impossible if you have the right attorneys by your side.

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