Does charging a defendant with more than can be proven confer some advantages to a prosecutor in the US? Sometimes in criminal cases with a lot of media attention it seems like the charges brought against the defendant are much more ambitious than the public evidence and circumstance would support. Of course it is always possible that there is non-public evidence that would merit more serious charges, but it seems too common for that to be the reason all of the time. Is it advantageous for the prosecutor to charge more than they know they can prove in criminal cases? If it is, what benefits (other than political “tough on crime” stuff) does it offer? I assume it offers more leverage and room to negotiate in plea deal bargaining and when the overcharging is &quot;horizontal&quot; it also allows more opportunities to win the case. Are there benefits beyond that based on how the legal system works? Are there any mechanisms that discourage overcharging a defendant in a case where media attention might be incentivizing more sensational charges? I did search a bit, but most of the things I found were defense attorneys discussing the abusiveness of overcharging. I was hoping to find out if there was more nuance to it. I have a feeling that &quot;overcharging&quot; is a loaded term, but I don't know a word for &quot;charging a little bit more than you can prove for good reason&quot;.
Overcharging does confer an advantage on the prosecution, specifically, it enhances the prosecutor's position in plea bargaining, allowing the prosecutor to &quot;compromise&quot; while still getting the actual conviction sought. There is also a more tangible issue. If a prosecutor brings a charge that carries the death penalty as a potential sentence, the jury that will be selected in the case is &quot;death qualified&quot;. This means that people who are morally opposed to the death penalty are excluded from serving as jurors in the case. But since people opposed to the death penalty are also more likely to acquit a criminal defendant than someone not opposed to the death penalty, a death qualified jury is more likely to convict on each and every one of the charges before it, even if everyone on the jury promptly agrees in deliberations that the prosecutor has not established the death penalty carrying charges beyond a reasonable doubt. Thus, bringing a weak death penalty charge both enhances the odds that there will be a conviction of something at trial, and enhances the plea bargaining position of the prosecutor both due to that greater change of prevailing on the merits at trial, and because the &quot;worst case scenario&quot; still drives the plea bargaining process to a significant extent. Furthermore, jury trials are inherently uncertain ordeals. My working estimate that I share with my clients is that even if the law and the facts seem to perfectly favor one outcome or another, that there is at least a 10% chance that the jury will get the wrong result. And with an additional charge carries the death penalty, or a long term in prison, as a possible sentence, a 10% risk of that happening is enough to strongly encourage a criminal defendant to plea guilty in a case where the defendant might otherwise &quot;roll the dice&quot; at trial if the more serious charge wasn't on the table. There is also a more subtle issue, which isn't precisely &quot;overcharging&quot; but is related. At trial, the prosecution is only allowed to introduce evidence which is &quot;relevant&quot; to the charges presented to a jury. So, for example, suppose that the primary charge at a trial is aggravated assault. In a pure aggravated assault case, the prosecution would probably not be allowed to introduce the fact that the defendant was suspected of being a drug dealer or participant in organized crime. But if a charge of drug dealing the minimum quantity of a drug for a charge of that type that was found in the vicinity of the defendant were brought, even if showing the defendant actually owned those drugs is difficult or impossible to prove beyond a reasonable doubt, the drug dealing charge would open up the ability of the prosecution to present all sorts of evidence showing that the defendant was affiliated with a drug dealing cartel. And while this evidence wouldn't be legally relevant to the more serious aggravated assault charge brought, this character attack and legally irrelevant context might sway the jury. Also, even if the jury would have convicted anyway, the presence of additional relevant issues in the case would make it easier for the prosecution to prevail on appeal in the face of a defense argument that the judge improperly allowed the jury to consider irrelevant and prejudicial evidence. As something of an aside, fighting alleged overcharging by the prosecution is one of the core responsibilities of a criminal defense attorney. It is quite rare that someone going to trial on criminal charges is not guilty of some crime (and when this is the case, the criminal defense attorneys' job is the hardest). But it is far more common for there to be a case where a criminal defendant is undeniably guilty of some crime (e.g. larceny), but where some other more serious charge (e.g. robbery or burglary) is marginal at best. Making sure that a criminal defendant is only punished for the crimes that he or she clearly did commit, and not for more serious overcharged crimes, is frequently a major issue for a criminal defense attorney defending someone who is clearly guilty of some crime.
Generally an affirmative defense raises some ground other than an element of the offense or civil claim, such as justification (e.g. self-defense), privilege (I'm a soldier acting under lawful orders so I'm immune from liability), the invalidity of a law, statute of limitations, insanity, a pardon, bankruptcy, a settlement agreement, or payment of the amount owed in full. In a civil case, an affirmative defense has to be raised in the answer to the complaint failed by the plaintiff or a timely amendment to that answer. The prosecution/plaintiff has to overcome an affirmative defense only if the defendant raises it, and in a civil case, at least, the burden of proof for an affirmative defense is on the defendant. The requirement that a defendant raise the defense going to something beyond the elements of the crime or civil claim is what makes it an &quot;affirmative&quot; defense. Affirmative defenses are conclusively presumed to be unavailable to the defendant if not raised. Usually, it is possible to prevail in a civil or criminal case by establishing a complete affirmative defense, even if the defendant admits all of the elements of the crime or civil claim against the defendant have been proven. Also, many affirmative defenses (e.g. failure to mitigate damages, or heat of passion) are incomplete affirmative defenses that reduce the consequences that a defendant will face if the prosecution/plaintiff establishes a prima facie case (i.e. proves all the elements of the crime or civil claim), but will not completely eliminate all consequences of the prosecution/plaintiffs' proof of all elements of the crime or civil claim for the defendant. But the prosecution/plaintiff must always prove each and every element of a crime or civil claim (beyond a reasonable doubt in criminal cases, and by preponderance of the evidence or by clear and convincing evidence in most non-criminal claims) even if the defendant fails to present any evidence or make any arguments related to the element of the crime or civil claim to prevail on the merits. Something that undermines an element of the crime or civil claim is a mere regular defense, because it doesn't have to be raised affirmatively, although in civil cases, facts that are alleged in a plaintiff's complaint are deemed admitted if they are not affirmatively denied, making the distinction between affirmative defenses and ordinary defenses in civil cases rather subtle. Of course, the term &quot;defense&quot; can be used to encompass both affirmative defenses, and other defenses which are not affirmative defenses (such as defenses that disprove an element of the crime or civil claim). Just to complicate matters further, there are a small number of ordinary defenses that still have to be raised affirmatively in advance in a criminal case despite the fact that it disproves an element of the crime, rather than advancing some other matter. The main example of this is an alibi defense (i.e. I wasn't at the scene of the crime when it happened).
The Supreme Court has said that "when a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given".1 This needs to be "clear and convincing" proof.2 The "clear and convincing" standard is higher than simply "more likely than not" or "preponderance of the evidence".3 It has been equated with "highly probable".4 In your hypothetical, the prosecution failed to prove that it was more likely than not that consent was freely and voluntarily given. They are far from meeting the "clear and convincing" standard that is required. The evidence resulting from the search would be excluded. I also recommend gracey209's answer, which explains why this hypothetical is not realistic, and describes many other factors that go into the determination of whether a search is reasonable -- the touchstone of the Fourth Amendment is reasonableness, not consent. 1. Bumper v. North Carolina 391 U.S. 543 (1968) 2. State v. Danby, 11 Ohio App. 3d 38 (1983): "Accordingly, a warrantless search based upon the consent of the defendant is valid if his consent is voluntarily given. [...] Furthermore, the degree of proof constitutionally required is proof by "clear and positive" evidence. [...] In construing the phrase "clear and positive" in terms of evidentiary proof, we observe that several courts have held that it is quantitatively equivalent to proof by clear and convincing evidence." 3. Calderon v. Thompson 523 U.S. 538 (1998) 4. Colorado v. New Mexico 467 U.S. 310 (1984): "Last Term, the Court made clear that Colorado's proof would be judged by a clear and convincing evidence standard. [... W]e thought a diversion of interstate water should be allowed only if Colorado could place in the ultimate factfinder an abiding conviction that the truth of its factual contentions are highly probable."
As a comment by @DavidSchwartz notes, this is not wrong. Questions of law but not fact are allowed. It is worth noting that the line drawn is arbitrary. In Colorado, where I practice, jurors issue written questions (pre-reviewed by the judge and counsel for all parties before being presented) to witnesses at the close of the testimony of each witness called by a party to testify. This is very helpful to counsel, as it provides indirect evidence of whether the jury understands what they are being told, and often juries will directly ask questions that for tactical reasons, both parties have refrained from asking that go to the heart of the matter. It also frequently clarifies misunderstandings that trained legal professionals assumed were not made about terminology. This is more problematic in criminal trials, where jury questions could provide evidence pushing a case over the threshold of proof needed to prove beyond a reasonable doubt that the prosecution failed to provide, than in civil cases with a preponderance of the evidence standard. Also, as a matter of reality, when jurors ask questions, counsel often loathe to object even when they have valid grounds to do so, for fear of offending the decision-maker, unless it is really critical to keep certain information away from the jury.
Several scholars have addressed this issue. Here's a quick bibliography. It appears that the most relevant "experiments" are the imposition of loser pays in medical malpractice suits in Florida for the first half of the 1980s, and Alaska's loser pays system. The Gryphon article below includes and discusses a decent amount of empirical data; the Di Pietro et al report is very extensive and has a lot of data. The Florida experiment resulted in a significant increase in suits dropped without settlement or trial, a significant decrease in the number of trials, and, apparently, one spectacular fee award in favor of a plaintiff, which impelled the Florida medical establishment to torpedo the law. Susanne Di Pietro et al, Alaska's English Rule: Attorney's Fee Shifting in Civil Cases (1995), http://www.ajc.state.ak.us/reports/atyfee.pdf. Marie Gryphon, Assessing the Effects of a "Loser Pays" Rule on the American Legal System: An Economic Analysis and Proposal for Reform, 8 Rutgers J. L. &amp; Pub. Pol'y 567 (2011). Douglas C. Rennie, Rule 82 &amp; Tort Reform: An Empirical Study of the Impact of Alaska's English Rule on Federal Civil Case Filings, 29 Alaska L. Rev. 1 (2012). David A. Root, Attorney Fee-Shifting in America: Comparing, Contrasting, and Combining the "American Rule" and "English Rule", 15 Ind. Int'l &amp; Comp. L. Rev. 583 (2005) (student article) (not available online). James R. Maxeiner, Cost and Fee Allocation in Civil Procedure, 58 Am. J. Comp. L. 195 (2010) (not available online).
The most innocent of your scenarios is "against the rules", so less innocent acts fair worse. The idea behind researching legal theory and precedent (presumably not presidents) is that surely it is good for a juror to know what the law is. But that thinking is wrong. The judge will instruct you as to what the law is, and will also instruct you that "the law" is limited to what he says it is. I will draw on the instructions for an antitrust case, Best Buy v. Toshiba, HannStar. The core instruction is: It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. The preliminary instructions (the pattern instructions for California civil trials) say the same basic thing: At the end of the trial, I will explain the law that you must follow to reach your verdict. You must follow the law as I explain it to you, even if you do not agree with the law. The judge instructs the jury that: When a party has the burden of proof on any claim or affirmative defense by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim or affirmative defense is more probably true than not true. Your research might find alternative statements of the law out there, which seem entirely plausible. That doesn't matter: you have to set aside whatever ideas (about the law) that you've gotten from anybody besides the judge. In fact, if the judge makes a (serious) mistake and rules against a party in a manner that is contrary to established law, and you know this (it doesn't matter how), you are supposed to apply the law (including rulings during trial as to admissibility) as given to you by the judge. As for a case of a juror knowing that the judge was mistaken (specifically, knowing based on his pre-existing knowledge of statutes and case law – not based on forbidden research during a trial), we can get the "should" from the absolute instruction to follow the judges instructions. Additionally, if you read transcripts of voir dire (not a trivial task), you can observe judges probing attorneys who happen to be in the prospective pool, asking questions to determine whether that person can just do as they are told. But it would be difficult to establish a "hard rule". There never will be an instruction that says "You must follow my orders even if you know for a fact that my orders are wrong" – jury instructions never admit the possibility of judicial error.
Q: Why don't US prosecutors press for imprisonment for crime in the banking industry? Q. Why aren't US prosecutors (and UK prosecutors for that matter) not pressing for imprisonment in such cases? Is this because there are no such laws under bankers can be so indicted (notably, in the case reported on above, there is the additional complication of extradition) . . . ? Prosecutors have the legal authority to prosecute bankers for crimes, and not infrequently do press charge bankers with crimes and press for imprisonment for crimes in the banking industry, and have obtained many very long prison sentences in cases like these. For example, "following the savings-and-loan crisis of the 1980s, more than 1,000 bankers of all stripes were jailed for their transgressions." And, in 2008, the laws involved were, if anything, easier to prosecute and had stricter penalties than they did in the 1980s. There were 35 bankers convicted and sent to prison in the financial crisis, although arguably only one of them was really a senior official. This said, the real question is not why they don't do this at all, but why prosecutors exercise their discretion to refrain from seeking imprisonment or lengthy imprisonment, in cases where they either have a conviction or could easily secure a conviction. A former justice department prosecutor (in the Enron case) argues in an Atlantic article that it is harder than it looks. But, he ignores the fact that a lot of people looking at the very Enron case he prosecuted after the fact has concluded that the criminal prosecution may have done more harm than good, leading to significant harm to innocent people (for example by destroying the careers and wealth of Arthur Anderson accountants who had no involvement with the case, due to a conviction that was ultimately overturned on appeal). This changed the pro-prosecution of corporations attitude that had prevailed before then (corporations are easier to prosecute than individuals since you don't have to figure out exactly who in the corporation committed the wrong). This time, regulators and securities law enforcers sought mostly civil fines against entities with some success: 49 financial institutions have paid various government entities and private plaintiffs nearly $190 billion in fines and settlements, according to an analysis by the investment bank Keefe, Bruyette &amp; Woods. That may seem like a big number, but the money has come from shareholders, not individual bankers. (Settlements were levied on corporations, not specific employees, and paid out as corporate expenses—in some cases, tax-deductible ones.) The same link also points out the two very early criminal prosecutions against individuals resulted in acquittals by juries at trial, for reasons that may have been very specific to those trials, undermining the willingness of prosecutors to press even strong cases for almost three years and undermining the credibility of their threat to prosecute criminally. Also, this is not a universal rule. For example, China routinely executes people who are convicted in summary trials of banking law violations and corruption charges. Q. Is this due to the principle of limited liability? No. Banking officials in a limited liability entity (and all banks are limited liability entities) can have criminal liability for acts in violation of banking and fraud laws, notwithstanding limited liability. Is this because . . . powerful vested interests prevents the actual execution of the law as it is intended? If so - how exactly are they prevented? This does happen but not often. Sometimes this happens, but not very often. The corruption angle is a popular narrative on the political very progressive left of American politics, but as I explain below (as you note "Chomsky, the formation of Western capitalism was in large part by due to "radical judicial activism".", and Chomsky is a very left wing social and economic historian almost to the point of Marxist analysis), this visceral narrative isn't really accurate most of the time. First, for what it is worth, the prosecutors play a much larger role in this than "activist" judges do. Secondly, the decision making process is more nuanced and less blatantly corrupt and self-interested than his attempt at "legal realist" analysis would suggest. There are legitimate reasons for someone in a prosecutor's shoes to focus less on these cases, even if in the end analysis you think that they have made the wrong choices in these cases. The case for prosecuting banking fraud severely is basically a utilitarian one, but criminal prosecution is guided by norms beyond utilitarian norms. There are certainly cases where an elected prosecutor or high level elected official is persuaded not to bring criminal charges or to be lenient due to pressure from powerful vested interest. When this is done, a white collar criminal defense attorney, or a "fixer" who deals with political sensitive cases (sometimes on an elected official's staff and sometimes not), or an elected official or political party official contacts the prosecutor or the prosecutor's boss or is the prosecutor's boss, and based upon the plea from the powerful interests (direct or indirect) urges the prosecutor to back off and the prosecutor complies. At the most extreme level, a Governor or President or parole board can pardon someone facing prison for banking crimes, which has happened, but is extremely rare. But, this sort of direct intervention in an individual case is not terribly common. My guess would be that 1% to 10% of banking prosecutions are affected by this kind of influence particular to a given case. This is far too small a number of cases to reflect the reluctance of prosecutors to bring criminal bank fraud cases that we observe. More Often Policy Decisions Are Involved Budgets And Institutional Case Prioritization Much more common would be for the elected prosecutor or the administration that employs an appointed prosecutor to decide to deprioritize a particular kind of case and/or to reduce funding (both at the law enforcement/regulatory agency level and at the subdepartment of the prosecuting attorney's organization level) for prosecution of these kinds of cases as a matter of broad policy. Every prosecutor's office and law enforcement office on the planet has more crimes that it could prosecute and pursue than it has resources to do so, so it is always necessary to have some kind of priorities to decide which of those cases will be pursued. For example, perhaps the Justice Department funds a white collar crime enforcement office with the resources to prosecute only 750 cases a year, and there are 7,500 strong cases that the offices could prosecute. The white collar crime prosecution office has to then prioritize which of the 7,500 strong cases is chooses to pursue. It might, for example, in good faith, decide the focus on white collar crime cases that harm "widows and orphans" and other large groups of people who can't afford to hire their own lawyers to bring civil cases to sue the wrongdoers themselves to mitigate the harm that they suffer. More specifically, a policy set in place by Deputy Attorney General Eric Holder in the Justice Department in 1999 was followed: The so-called Holder Doctrine, a June 1999 memorandum written by the then–deputy attorney general warning of the dangers of prosecuting big banks—a variant of the “too big to fail” argument that has since become so familiar. Holder’s memo asserted that “collateral consequences” from prosecutions—including corporate instability or collapse—should be taken into account when deciding whether to prosecute a big financial institution. That sentiment was echoed as late as 2012 by Lanny Breuer, then the head of the Justice Department’s criminal division, who said in a speech at the New York City Bar Association that he felt it was his duty to consider the health of the company, the industry, and the markets in deciding whether or not to file charges. This was a top level policy choice made a decade before the Financial Crisis arose, not an individualized act of corrupt interference. Advocacy From Representatives Of Victims Another common voice for leniency are lawyers on behalf of victims of white collar crimes (I've been in this spot myself on behalf of clients). Why? Mostly for two reasons: People in prison don't make future income to compensate the victims out of. People prosecuted criminally pay fines and court costs that don't go to the victims and reduce the pool of available funds for the victims. The private lawyers representing victims recognize that not prosecuting a white collar criminal leaves that person at large to commit future economic crimes (white collar criminals are rarely a physical threat to the people in the community around them or to anyone who doesn't do business with them) and that it fails to strongly discourage others from doing the same thing in the future. Institutional victims of banking crimes and other white collar crimes may also urge prosecutors not to prosecute the crimes that victimized them, because they fear that the publicity would harm them more than the criminal penalties for the offender (whom they have ample means to sue in a civil action) would benefit them. The fact that victims seek leniency more often in white collar crime cases than in almost any kind of case (other than domestic violence cases, where victims also often urge leniency out of love and as a result of their economic dependency on the perpetrator), often causes prosecutors to determine that criminal prosecutions seeking long prison sentences are not a priority for the victims of these crimes and to prioritize their case loads accordingly. To get the $190 billion of settlement money that was paid from individuals would have required convictions of 1900 people capable of paying $100,000,000 each in 1900 very hard fought individual criminal cases, instead of 49 civil cases. This may or may not have been possible, as the most culpable figures were often in upper management, while the most affluent potential defendants were in top management and would have been harder to pin with personal criminal liability. Many top managers are relatively hands off in their management style and didn't get into the culpable criminal details. There are plenty of very influential and powerful bankers who were highly culpable who would have had less than $10,000,000 of net worth, much of which wasn't tainted with improper conduct, which isn't to say that prosecutors couldn't have seized it from them for fines and restitution, but it does make the moral case for doing so less clearly compelling. Evaluating Priorities For Limited And Expensive Prison Resources Prosecutors sometimes reason in white collar crime cases that keeping a white collar criminal in prison is very expensive to the state (up to $70,000 per person per year), and doesn't change the risk of physical harm to the general public, and that a felony conviction itself and fines and publicity and probation conditions are often sufficient to mitigate the risk that the convicted person will reoffend and to discourage others from doing the same thing in the future. Parole boards, in systems that have them, often release white collar criminals as early as possible, applying the same reasoning. Also, white collar criminals tend to be model prisoners. An incarcerated white collar defendant is also depriving the public of tax revenues on income that person would otherwise receive if out of prison. A long prison sentence can victimize the public economically in amounts comparable to a moderate magnitude economic crime. Crudely speaking, prosecutors reason: "Why spend huge amounts of scarce prison money to lock someone up when we have murders and rapists and people who steal things at gun point and violent criminals who seriously injure people without justification who really need to be our priority to get off the streets? The devious and dishonest banker doesn't present the same sort of risk to the general public and his conviction and probation conditions should suffice to prevent him from having the ability to do this in the future." Social Class Bias Yet another reason is that often prosecutors and the people who set policy for prosecutors don't see white collar crimes as culpable in the same way that they do blue collar crimes. Most prosecutors spend the vast majority of their careers prosecuting blue collar criminals, terrorists and the like. These are people from a different social class, who live lives very unlike their own, and the people who are victimized by these crimes tend to be middle class or more affluent people and businesses. Banks, for example, are routinely victims of armed robberies which prosecutors prosecute, and of embezzlement by low level employees, which prosecutors prosecute. Bankers socio-economically and culturally are a lot like the prosecutors themselves (who are lawyers), their peers, and the victims they usually defend, and are rarely like the people that they usually prosecute (lower class, often minority people, who have never worked in an office, failed in school, are quick to anger and hurt others, etc.). At an individual case level, a white collar criminal defense lawyer can often marshal very impressive character witnesses to say that the defendant is basically a good guy who messed up once, while this is frequently very difficult for blue collar criminal defendants to do in a way that really reaches prosecutors and judges. The bottom line is that prosecutors (and judges, many of whom are former prosecutors) sympathize with, understand and relate to white collar criminals far more than they do with ordinary blue collar criminals. And, this colors their judgments about what kinds of punishments (criminal or non-criminal) are appropriate for the kind of conduct that these people commit. Their instinct is that a crime that might be committed by someone like me is probably not as serious as a crime that a judge or prosecutor would never dream of committing like an armed robbery of a bank, even though economically, the banking fraud crime may have caused $500,000,000 of harm while the armed bank robbery may have caused only $5,000 of harm.
It is the use of a "menace" which creates the crime, not the nature or validity of the demand. That's not correct. You've inadvertently missed the other element of the offence: that it's an "unwarranted demand". A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief— (a) that he has reasonable grounds for making the demand; and (b) that the use of the menaces is a proper means of reinforcing the demand. https://www.legislation.gov.uk/ukpga/1968/60/section/21 For example, I may have reasonable grounds under the Consumer Rights Act to demand a refund for a faulty good. It might be sensible to moderate one's language, e.g. "If I do not receive a satisfactory response from you within 30 days of the date of this letter, I intend to issue proceedings against you in the county court without further notice. This may increase your liability for costs." vs. "If I do not receive the money from you within 30 days of the date of this letter I'll take you to the f***ing cleaners, sunshine." But the language doesn't make the demand unwarranted.