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To: xzins

Agreed. I think shotgun charging (in the absence of a non-contradictory theory of the crime that explains each charge independently) needs to go, and that something needs to be done to rein in overcharging as a tactic. If I’m on a jury and I think the prosecutor overcharged as a tactic, the guy walks, for instance. Somewhere between eliminating the incentive and creating a disincentive it’s gonna stop.


81 posted on 05/25/2012 10:24:09 AM PDT by Still Thinking (Freedom is NOT a loophole!)
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To: Still Thinking
Agreed. I think shotgun charging (in the absence of a non-contradictory theory of the crime that explains each charge independently) needs to go, and that something needs to be done to rein in overcharging as a tactic.

Charging someone with multiple inclusive offenses is entirely reasonable and proper in cases where the criminality of certain actions may be affected by other actions or demonstrable intentions. If someone commits homicide with malice aforethought, that person commits Murder in the First Degree. If someone commits homicide deliberately and without anything resembling a belief that the action was legitimate, but does it without malice aforethought, that person commits Murder in the Second Degree. If the person has a sincere but unreasonable belief that the action was necessary for self-defense, the person commits Manslaughter.

If the state can prove that an accused killer cannot have had any objectively-reasonable basis for believing that his action would be justifiable, and has witnesses that would indicate that defendant had pre-arranged a sham self-defense defense before killing the decedent, the state should be able to charge the defendant with First Degree Murder without having to give up the charge of manslaughter. Among other things, if the state had to give up on a manslaughter charge in order to bring a murder charge, a defendant who was guilty of manslaughter could bait the state into bringing a murder charge with a "witness" who would support the murder charge until brought to the stand but then reveal himself to be absolutely non-credible.

The real problem isn't with "shotgun charging" in cases where the extent of the defendant's criminality may be unclear, but rather outright over-charging by prosecutors seeking a plea-bargain.

88 posted on 05/25/2012 4:31:13 PM PDT by supercat (Renounce Covetousness.)
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