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Comment by bostik | Hacker News Reader

In some of my not-entirely-sober states of mind I have sometimes thought of ways to eliminate prosecutorial overreach. (It's a problem outside US too.)

A very simple approach would be that for each count that the defense can strike off as irrelevant or spurious, they would also get to strike off any other charge of their choosing. That alone would make prosecutors extremely wary of bringing up random charges in hopes of seeing which they can make stick. They would need to have solid evidence for each charge or risk having the most serious ones nullified.

On the other hand, I'm not naive enough. The cure could well be worse than the poison it was meant to address.

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This is just trying to treat the symptom: the issue is not that we try multiple things at once, its that that becomes a real option when we have too many laws. As mentioned below, I think no one has a real issue with someone being tried for 4 murders and 1 rape. Seems totally reasonable to me that if they only find him guilty of 3 of those murders justice was still served. If prosecutors were only operating under a much smaller and more well defined and understood set of laws, they simply wouldn't be able to over-prosecute. Its harder easier to find any given person guilty given 10 laws vs given 1 law.

Just look at the situation with traffic violations: most cops will tell you that if they want to cite you for something, they can find something to cite you on. The solution is not to come up with clever tricks where they lose points if they cite you for too many of these, or citation 1 disqualifies citation 2 or whatever, its to just limit the number of traffic laws so that police are only capable of acting on real issues.

I say we go with an even more radical solution, based on the chief protection against that harm in medieval Iceland.

Let's require that the Speaker of the House recite from memory 1/4 of the federal code (including regulatory laws) every year, so that over the course of 4 years, the entire code of laws gets recited. Anything accidently omitted gets stricken from the law books.

Congress should open with this. And if one human cannot be expected to know the law, then nobody else should be either.

"Ooops forgot murder!"

(or if you are more cynical, "lobbying regulation")

Wouldn't be a good idea to forget that one in medieval Iceland....

Now, keep in mind that manslaughter was relatively minor at the time, but secret murder was really, really bad. The difference was that manslaughter was where a killing was announced and taken credit/responsibility for. If you hid the fact, that was cause to have everything you own taken by the victim's family and have any legal protections you might have had in the past revoked, meaning anyone could kill you and nobody could give you shelter.

As ama729 hinted at but didn't call out explicitly, this would give the Speaker unilateral authority to overturn any law. That's tremendous power in one individual.

It's not so different, conceptually, from the pardon power.

An interesting point. The pardon power is presently a check on the legislative, though. Vesting it in the person in charge of the legislative would be a tremendously significant change in ways entirely unrelated to the desired pressure towards fewer laws.

I'm not going to say this couldn't possibly be a good idea, but it'd need very close scrutiny and probably other changes.

Your idea is already addressed by standard criminal procedure, except for the bizarre part about letting the defense strike off any charge of its choosing.

In a nutshell: after the arraignment but before trial, they have a court hearing (the "preliminary hearing" aka "probable cause hearing", see http://en.wikipedia.org/wiki/Preliminary_hearing for a layman's description) in which the prosecution is required to lay out sufficient evidence to justify each charge. They don't have to provide evidence sufficient to prove guilt (yet, because that is the jury's function) but they have to show sufficient evidence that a jury could find guilt. Charges which do not satisfy even this basic level of substantiation are dropped by the court.

Edit: You can downvote this comment all you want; it doesn't change the fact that preliminary hearings have been a basic part of US criminal jurisprudence for decades, functioning more or less exactly as described above.

I'm not sure you grasped the parent comment's point. The idea was that there would be a penalty to include charges that could be struck out at a preliminary hearing.

As it stands, there is incentive to threaten a defendant with onerous charges that would never stand up in court. Most cases are settled by plea bargains. I'm not clear on the statistics, but I think this means they never reach preliminary.

Under the parent's proposal, the prosecution could not introduce spurious charges without risking losing their actual legitimate charges.

I don't know what the unintended consequences would be, but striking off the charges is not a "bizarre" part of the proposal. It's the point of the proposal.

>You can downvote this comment all you want; it doesn't change the fact that preliminary hearings have been a basic part of US criminal jurisprudence for decades, functioning more or less exactly as described above.

Neither does it change the fact that preliminary hearings do NOT solve the problem he describes.

I agree and disagree with you.

What you describe is clear and straightforward for "traditional" crimes, but when your talking about highly abstract/technical or transactional crimes, I don't think that any non-millionaire could afford representation capable of dealing with multiple counts of honest services fraud, very technical violations of something like a firearms law.

I also think that in the federal space, things like lying to a federal agent should not be crimes -- look at the Martha Stewart case. We should be convicting people of crimes they commit, not for statements made during an investigation.

Do preliminary hearings tend to happen before plea bargains are offered? So if you are faced with 10 charges adding up to 500 years on jail, those have already been vetted by the court as having sufficient evidence and aren't just a scare tactic to get you to waive the trial?

I'd go further. The jury must convict on all presented charges or none. Throwing 900 charges at someone, as the article says, is a way to force a plea bargain from someone who may well be innocent. (And removing a charge after failing the plea bargain tactic, but before court can't be allowed either.)

I was just thinking about this. Why do we allow multiple charges per trial?

What would happen if we only allowed one charge per trial, and it was a prosecutor's job to determine (along with existing duties) which one of the possible charges would be tried? Double jeopardy would be prevented by requiring submission to the court of all considered charges; attempting to bring a new charge for an already-adjudicated matter would be handled like a failure to disclose exculpatory evidence is today - the charge would be thrown out and the prosecutor would be reprimanded however that happens today.

I think there must be legitimate instances of multiple charges per a trial. I like the idea in the comment you responded to, I think that would be effective enough.

We allow multiple charges today because a person can be guilty of multiple different crimes for the same act.

Your suggestion makes no sense. It would incentivize people to commit as many crimes simultaneously as possible, knowing that they could only ever be charged for one of them.

>We allow multiple charges today because a person can be guilty of multiple different crimes for the same act.

There is no logical necessity that "multiple different crimes for the same act" HAVE to be tried in the same trial, which was the whole point of what he said.

>Your suggestion makes no sense. It would incentivize people to commit as many crimes simultaneously as possible, knowing that they could only ever be charged for one of them.

Again you tollaly miss not only the point, but also his suggestion completely. He doesn't say a person has to be charged with "only one" of the crimes he did, but that each crime charge should have it's own trial proceedings.

There is no logical necessity that "multiple different crimes for the same act" HAVE to be tried in the same trial, which was the whole point of what he said.

Of course not. But in the real world, pragmatism applies. Related crimes will almost always be tried together; it is only in extremely rare circumstances where one or more charges will be tried separately from related charges.

This would only be possible if the defendant waived their right to a speedy trial. The flipside to allowing only one charge per trial is that a defendant's risk of criminal punishment could extend for years for the period between arraignment (the charging hearing) and judgement (the verdict), rather than weeks or months as is the case today.

No, I actually meant that for a particular act, you could be held accountable for one crime committed during the act and that's it. The idea being the prosecutor would pick the most serious charge likely to win conviction and focus their attention on that. I thought it would streamline the entire process and result in a higher quality trial, since attention would not have to be split amongst several charges.

I was thinking of two situations: multiple homicides resulting in e.g. multiple life sentences - this has always seemed like silly theatrics to me - and the situation where e.g. a traffic stop for a busted taillight might lead to charges of driving on a suspended license, drugs possession because the friend-of-a-friend you're giving a ride to had weed on him and threw it under the seat, and resisting arrest because you argued with the cop. I was NOT thinking about gamer criminals trying to execute multi-crime combo moves, or about the scenario where someone was killed and rape was certain but murder iffy.

So overall the one charge approach has a lot of problems. It was a poorly formulated idea and I should not have posted it.

Thanks for attempting to find reason in it, though.

So if we were (for example) sure a person had committed rape, and had good evidence they also committed murder, it is up to the prosecutor to decide if they should risk pursuing a murder charge, risking a person going free for a rape which they would certainly be convicted for?

Also, if you do murder someone, you may as all rape them too, as it can't lead to any more sentence?

> Why do we allow multiple charges per trial?

Because it saves the state (and, hence, the public) -- both the court and the prosecution -- witnesses, and the defendant time, and money and reaches finality sooner to consider related charges in a single proceeding rather than serial proceedings.

That's why we actually go further than allowing multiple charges per trial, but require, in many circumstances, related charges to be prosecuted in the same trial or not at all.

And, also, why we do the same thing in the civil system (though in that case, you have to consider another party -- the potential private plaintiff -- who has the same savings, since the state is no longer paying both the court and the prosecution.)

Note that if there are multiple charges, prosecuting all of them at once benefits the accused as well, who needs to mount only one defense, as opposed to facing multiple trials for multiple charges.

The latter is the case at times especially where federal charges are brought against someone who's been found not guilty on state/local charges within the US. While I understand the tactic, it has significant abuse potential.

Well, there may be good reasons for multiple charges. For example, rape and murder might be tried together.

However, if we stopped allowing lesser included charges, that would be a good thing. For example, let's stop giving juries the ability to say "It wasn't murder, but manslaughter since intent wasn't proven."

That is an extremely dumb idea. And I say that from the POV as someone who used to represent criminal defendants.

A person can be guilty of multiple crimes for the same act. Under the basic principles of criminal constitutional law, all crimes for the same act must be charged at the same time. Your solution would mean that someone guilty of rape, murder, and larceny would go completely free if they were found guilty of the two more serious crimes (rape and murder) but not guilty (or no verdict) for the least serious crime.

> Under the basic principles of criminal constitutional law, all crimes for the same act must be charged at the same time

You're just referencing double jeopardy, and mean that you have to simultaneously present all charges that you ever want to charge them with, right?

In your hypothetical, just ignore the larceny. In the event that they're found guilty of rape and murder, you can't really say that justice wasn't done. In the event they can beat the serious charges, you shouldn't think that getting them on the larceny would have been actual justice.

To the extent you may be right that it's a fundamentally bad idea, then the fact that one minor act can be turned into so many "independent" charges demonstrates the problem with a proliferation of laws that cover any possibly wrong action five times over.

One possible fix would be for Prosecutors to have a karma rating and each time someone is found not guilty of any charge it brings them down a notch. At a certain point then they would have their law license suspended for a time.

That's almost how the current system works, and is a source of much of it's woes. There is no actual "karma rating", but prosecutors are very mindful of their success rates as they are generally considered to be a measure of their worth as a prosecutor and the basis on their future career advancement.

Because of that, once they prosecute someone, they must succeed -- and this leads to situations like the prosecution withholding or trying to hide evidence proving innocence.

Is there a way to compare / access the success rates of different prosecutes?

Right, a 100% conviction rate could mean any of 1) they are very good at picking their battles, 2) they are very good at convicting innocent people, 3) they are extremely over-conservative in the cases they pursue. Only 1 is a good thing, although lesser degrees of 3 might be as well, depending. 2 is outright bad.

I posted these here just a few days ago:

- Accused can choose to take the plea but continue the trial. If he loses he just serves the plea.

- A conviction on a crime caps the max penalty for that crime: this means if a rich daddy's boy gets away with 60 days probation for a DUI, any future DUI conviction cannot be bigger than 60 days probation.

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