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 Nevada, entrapment is recognized as a complete defense to a criminal charge. The defense is based on the principle that government agents, such as undercover police or FBI agents, cannot instigate a criminal scheme, persuade an otherwise innocent person to commit a crime, and then facilitate the commission of that crime just to secure a prosecution. For a defendant to successfully assert an entrapment defense, they must demonstrate that the criminal conduct was induced by a government agent. If it is established that the government induced the crime, the burden shifts to the prosecution to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime before any government intervention. If the prosecution can show that the defendant was ready and willing to commit the crime without government provocation, the entrapment defense will not succeed. Conversely, if the defendant was not predisposed to commit the crime and was essentially a law-abiding citizen, they may be able to rely on the entrapment defense to avoid conviction. It is important for anyone facing criminal charges and considering an entrapment defense to consult with an attorney to understand the specific requirements and how they apply to their case.