Overcharging a Defendant
I have no intention of commenting on the Trayvon Martin-George Zimmerman case. I want to remain the only person who has refrained for commenting about it. However, there was something that occurred during the trial that occurs all to frequently and seems wrong to me.
Zimmerman was charged and tried on 2nd degree murder. After all the evidence was presented, all the witnesses questioned, and the defense and prosecution rested their cases, but before final arguments were given to the jury, the judge permitted the prosecution to add the “lesser included” offense of manslaughter to the list of charges the jury would consider, even though the defense objected. Both sides then addressed 2nd degree murder and manslaughter in their closing arguments.
Should the state be permitted to pile on charges after the defense and prosecution have rested their cases? I don’t think so for several reasons.
First, if the state is permitted to add lesser charges after the evidence is presented, then prosecutors are more likely to overcharge before trial begins to extort a plea bargain. The defendant faces extra jail time if convicted of the more severe charge, yet still faces the lesser charge, because it will be added after the fact. The defendant now pleas to the lesser charge and never gets his day in court. The state may have a flimsy 2nd degree murder case, or no 2nd degree murder case at all, but 25 years minimum is so much more severe than 5 years minimum, the defendant doesn’t risk it.
But if the state were forced to live with the charge it brought to trial -- no adding lesser included offenses afterwards -- wouldn’t their behavior change? Wouldn’t prosecutors charge the defendant with the offense that most accurately reflected the crime committed, rather than risk losing at trial because of overcharging? How many defendants pled away their rights for fear of doing many, many years in jail because of overcharging? How many were innocent?
Second, if the state can add lesser charges after the defense and prosecution rest, how does the defense know what charges to defend against? There is only the one charge in front of the court at start of trial. But then there is the possibility of others later. How do you provide an adequate defense against the unknown?
Allowing the prosecution to add lesser charges after the fact without informing the defense before the fact, gives the prosecution a strategic advantage during the trial. The prosecutor know where it is going; the defense does not. The prosecution can ask witnesses questions the defense thinks are irrelevant or off the mark, only to find after they have reseted their case that the prosecution is trying to add charges that bring those questions into riveting focus.
Zimmerman was charged and tried on 2nd degree murder. After all the evidence was presented, all the witnesses questioned, and the defense and prosecution rested their cases, but before final arguments were given to the jury, the judge permitted the prosecution to add the “lesser included” offense of manslaughter to the list of charges the jury would consider, even though the defense objected. Both sides then addressed 2nd degree murder and manslaughter in their closing arguments.
Should the state be permitted to pile on charges after the defense and prosecution have rested their cases? I don’t think so for several reasons.
First, if the state is permitted to add lesser charges after the evidence is presented, then prosecutors are more likely to overcharge before trial begins to extort a plea bargain. The defendant faces extra jail time if convicted of the more severe charge, yet still faces the lesser charge, because it will be added after the fact. The defendant now pleas to the lesser charge and never gets his day in court. The state may have a flimsy 2nd degree murder case, or no 2nd degree murder case at all, but 25 years minimum is so much more severe than 5 years minimum, the defendant doesn’t risk it.
But if the state were forced to live with the charge it brought to trial -- no adding lesser included offenses afterwards -- wouldn’t their behavior change? Wouldn’t prosecutors charge the defendant with the offense that most accurately reflected the crime committed, rather than risk losing at trial because of overcharging? How many defendants pled away their rights for fear of doing many, many years in jail because of overcharging? How many were innocent?
Second, if the state can add lesser charges after the defense and prosecution rest, how does the defense know what charges to defend against? There is only the one charge in front of the court at start of trial. But then there is the possibility of others later. How do you provide an adequate defense against the unknown?
Allowing the prosecution to add lesser charges after the fact without informing the defense before the fact, gives the prosecution a strategic advantage during the trial. The prosecutor know where it is going; the defense does not. The prosecution can ask witnesses questions the defense thinks are irrelevant or off the mark, only to find after they have reseted their case that the prosecution is trying to add charges that bring those questions into riveting focus.
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