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NCJ Number: 67947 Find in a Library
Title: PROSECUTORIAL OVERCHARGING
Author(s): P BENNETT
Date Published: 1979
Page Count: 17
Document: PDF
Format: Document
Language: English
Country: United States of America
Annotation: POSSIBLE ATTACKS ON PROSECUTORIAL OVERCHARGING ARE EXPLORED IN THIS MEMO FOR THE LEGAL RESOURCES PROJECT IN MICHIGAN TO AID DEFENSE ATTORNEYS.
Abstract: HORIZONTAL OVERCHARGING OCCURS WHEN MULTIPLE CHARGES ARISE FROM A SINGLE INCIDENT, AND VERTICAL OVERCHARGING OCCURS, WHEN MORE THAN ONE OF THE SIMILAR PENAL STATUTES CARRYING DISPARATE SENTENCES ARE APPLIED TO A SINGLE TRANSACTION. THE OVERCHARGING IS MOST OFTEN PRACTICED BY PROSECUTORS TO COERCE A GUILTY PLEA. IT HAS BEEN DISAPPROVED BY THE AMERICAN BAR ASSOCIATION, BECAUSE INTIMIDATING A DEFENDANT WHO MAY BE INNOCENT TO ACCEPT A GUILTY PLEA INFRINGES UPON THE DEFENDANT'S RIGHT TO A FAIR TRIAL. THE ORIGINAL CHARGES WHICH ARE LEFT ON THE DEFENDANT'S RECORD MAY INFLUENCE THE AUTHORITIES TO LENGTHEN THE DEFENDANT'S SENTENCE. THE POSSIBLE ATTACKS ON OVERCHARGING FALL INTO SEVERAL CATEGORIES. THE DOUBLE JEOPARDY CLAUSE PROHIBITS CONVICTIONS FOR BOTH A GREATER AND LESSER INCLUDED OFFENSE. THE EQUAL PROTECTION CLAUSE GUARANTEES LIKE TREATMENT FOR ALL PERSONS WITHIN A CLASS AND ALL PERSONS IN LIKE CIRCUMSTANCES. WHEN PROSECUTORS BRING CHARGES FOR WHICH THERE IS NO PROPER EVIDENCE, DEFENSE COUNSEL SHOULD IMMEDIATELY MOVE TO HAVE THEM DISMISSED. THIS IS OFTEN THE CASE WITH HOMICIDES WHICH ARE ROUTINELY CHARGED AS FIRST DEGREE MURDERS. STATUTORY INTERPRETATION IS THE GROUND FOR FINDING THAT A CHARGE IS AN IMPROPER OVERCHARGE. IN VERTICAL OVERCHARGE CASES, TRIAL COUNSEL SHOULD MOVE TO DISMISS THE OVERCHARGE. IN HORIZONTAL OVERCHARGING CASES ALL THE CHARGES MAY BE VALID, BUT THE DEFENDANT CANNOT BE CONVICTED AND SENTENCED ON ALL THE CHARGES. THE DEFENSE ATTORNEY SHOULD START OBJECTING TO THE OVERCHARGING AS SOON AS POSSIBLE TO GET THE NUMBER AND LEVEL OF CHARGES REDUCED. EXAMPLES OF CASES INVOLVING OVERCHARGING ARE INCLUDED.
Index Term(s): Coercive persuasion of offenders; Defense preparation; Michigan; Multiple charges; Plea negotiations; Prosecutorial discretion
Note: AN ABRIDGED VERSION OF THIS PAPER APPEARS IN THE AUGUST AND SEPTEMBER 1979 ISSUES OF THE CRIMINAL DEFENSE NEWSLETTER
To cite this abstract, use the following link:
http://www.ncjrs.gov/App/publications/abstract.aspx?ID=67947

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