The problem of overcharging in criminal prosecutions

In matters of criminal defense, often the question arises, “Does the punishment fit the crime?” But aside from any possible punishments, the basic question in many cases is, “Was the original charge even appropriate?” A quick glance at recent high-profile cases will show you that many criminal charges amount to overcharging, as the jury decided not to convict on certain charges, or the charges were dropped before the case went to trial.

So why do prosecutors repeatedly overcharge defendants?

Prosecutors often overcharge defendants in hopes that, out of maybe five charges, at least one or two lead to a conviction. A jury may not find the additional charges to be appropriate, so the jury decides the defendant is not guilty of those extra charges. However, overcharging generally does not go away without defense intervention.

For example, without a strong defense, a person could be convicted of a felony when the appropriate charge should have been a misdemeanor. In many cases, faulty evidence from the prosecution should have precluded a particular criminal charge, and it is up to the defense to get the faulty evidence thrown out. This may be the case in all types of criminal trials, including those involving drug charges, violent crime charges, DUI charges and white collar crime charges.

Overcharging is also a way for prosecutors to exert pressure on a defendant. This strategy may be particularly relevant if multiple people are suspected of engaging in a crime. In such a case, the prosecution’s overcharging may be a strategy for getting one defendant to be a witness against another defendant.

How can defendants in criminal cases fight back against overcharging?

If you are facing a criminal charge, you should try to find a criminal defense lawyer who has also worked as a prosecutor. Former prosecutors know how criminal prosecutions work, and a former prosecutor is often best positioned to defend against overcharging. You should find an attorney who is smart, discreet and has a record of success.

For more on effective criminal defense trial strategies, please see our previous post: “Defense narratives: Why primacy and recency matter so much.”