Hon. John J. DiMotto
Entrapment is an affirmative defense bearing upon the guilt or innocence of a defendant. It is the inducement of a person to commit a crime not contemplated by the person for the mere purpose of instituting a criminal prosecution against the person. It is a question to be decided by the trier of fact -- a judge after a court trial or a jury. It pertains to the merits of the cause and is not raised in a pretrial motion. It is not a ground for excluding evidence. State v. Hochman, 2 Wis.2d 410, 413 - 414, 418 - 419 (1957).
Entrapment is a positive defense, the invocation of which necessarily assumes that the act charged was committed. 22 C.J.S., Criminal Law, pp.99, 100, sec. 45a.
An examination of case law, gives one a clear understanding of the parameters of this defense.
In Hawthorne v. State, 43 Wis.2d 82 (1969), the Court set forth:
1) If criminal intent or the willing disposition to commit the crime originates in the mind of the accused and the criminal offense is completed, the fact that the opportunity is furnished or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute the accused for it, constitutes no defense.
2) However, if the evil intent and the criminal design originate in the mind of the government agent and the accused is lured into the commission of the offense charged in order to prosecute the accused for it when he would not have committed an offense of that character except for the urging of the agent, no conviction may be had.
3) Entrapment, as a matter of law, is not established where there is any substantial evidence from which it may be inferred that the criminal intent to commit a particular offense originated in the mind of the accused.
In Fletcher v. State, 68 Wis.2d 381 (1975), the Court set forth that the defense of entrapment is inapplicable where the state shows that the defendant's prior disposition to commit the crime; that the intent to violate the law originated in the mind of the defendant.
In State v. Amundson, 69 Wis.2d 554 (1975), the Court set forth that entrapment involves two elements: First, the defendant must show "inducement" by a preponderance of the evidence. Second, the State must show "predisposition" by the defendant beyond a reasonable doubt. The Court further indicated that entrapment encompasses inducements and other activities by police removing the element of volition by the defendant. It stated that entrapment is involved where police have instigated, induced, lured or incited the commission of the crime and where police tactics offend common concepts of decency.
In State v. Saternus, 127 Wis.2d 460 (1986), the Court set forth that entrapment is a common law defense. It is only a dispositive issue when all elements of the crime are proved. It is not available when the intent to commit the crime originates in the mind of the defendant. If the defendant had a willing disposition to commit the crime, the fact that the opportunity is furnished by police to secure the evidence constitutes no defense. However, if the evil intent and criminal design originated in the mind of the government agent and the accused is lured into the commission which he otherwise would not have done, no conviction can be had. The Court said that the entrapment defense is not to be resolved solely by consideration of outrageousness of the government agent but rather the trier of fact must look to where the intent originates. A subjective test is applied to whether police conduct affected or changed the defendant's state of mind as contrasted with the objective test which focuses on how reprehensible police action would affect intent of a person in the circumstances whether predisposed or not.
In State v. Steadman, 152 Wis.2d 293 (Ct. App. 1989), the Court indicated that government providing a defendant with opportunity but not instigated crime is not entrapment.
In State v. Bjerkaas, 163 Wis.2d 949 (Ct. App. 1991), the Court set forth that the trial court may deny an entrapment instruction if not reasonably required by the evidence. Mere offering to buy drugs is not entrapment. Befriending a defendant is not inducement.
In State v. Hilleshiem, 172 Wis.2d 1, Ct. App. 1992), the Court set forth that a government agent furnishing a defendant with the opportunity to commit a crime is not entrapment.. A government agent hay engage in some inducement, encouragement or solicitation in order to detect criminals. Entrapment is only established if a government agent uses "excessive" incitement, urging, persuasion or temptation and prior to inducement the defendant was not already disposed to commit the crime.
In State v. Schumann, 226 Wis.2d 398 (Ct. App. 1999), the Court indicated that only "slight evidence" is required to create a factual issue and put the defense before the jury. Evidence may be weak, insufficient, inconsistent or of doubtful credibility but a defendant is entitled to an entrapment instruction unless the evidence is rebutted by the state to the extent that no rational jury could entertain a reasonable doubt as to inducement and lack of predisposition.
While the entrapment defense is an available defense, it is very rarely pursued because the defendant must concede the elements of the offense -- concede the commission of the crime -- and hope that the jury will accept the defendant's explanation that intent to commit the crime did not originate with the defendant but was the result of excessive government incitement, urging, persuasion or temptation. A defendant needs to come before the jury with "clean hands" if he or she hopes to prevail.