Overcharging, in law, refers to a
prosecutor
A prosecutor is a legal representative of the prosecution in states with either the adversarial system, which is adopted in common law, or inquisitorial system, which is adopted in Civil law (legal system), civil law. The prosecution is the ...
ial practice that involves "tacking on" additional charges that the prosecutor knows he cannot prove. It is used to put the prosecutor in a better
plea bargaining A plea bargain, also known as a plea agreement or plea deal, is a legal arrangement in criminal law where the defendant agrees to plead guilty or no contest to a charge in exchange for concessions from the prosecutor. These concessions can include ...
position. The term has been defined in different ways. Alschuler writes that "to prosecutors, overcharging is accusing the defendant of a crime of which he is clearly innocent to induce a plea to the 'proper' crime. Defense counsel identify two types of overcharging. 'Horizontal' overcharging is the unreasonable multiplying of accusations against a single defendant. He may be either charged with a separate offense for every technical criminal transaction in which he participated, or the prosecutor may fragment a single criminal transaction into numerous component offenses. 'Vertical' overcharging is charging a single offense at a higher level than the circumstances of the case seem to warrant." Vertical overcharging is deemed to be the more abusive of the two practices. In defense of overcharging, it has been argued that in order to obtain a plea bargain that results in a lower sentence than the prosecutor's original position, while still obtaining a penalty that promotes public safety, the prosecutor must select an initial charge higher than is penologically appropriate.
Although theoretically overcharging is impermissible, courts are reluctant to dismiss charges that are supported by
probable cause
In United States criminal law, probable cause is the legal standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal and for a court's issuing of a search warrant. One definition of the standar ...
.
American Bar Association
The American Bar Association (ABA) is a voluntary association, voluntary bar association of lawyers and law students in the United States; national in scope, it is not specific to any single jurisdiction. Founded in 1878, the ABA's stated acti ...
guidelines discourage overcharging, but do not prohibit it. It has been said that rules aimed at combating
prosecutorial vindictiveness that force prosecutors to justify any distinct indictments brought subsequent to an initial charge raise the possibility of overcharging. It has been argued that restrictions on the current practice of plea bargaining would most likely result in a reduction in overcharging by the prosecutor.
References
Prosecution
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