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Explore General Legal Issues

What Are The Defense's Options In An Overcharged Case?

by Ralph Griffin

Overcharging is a common prosecutorial practice. Prosecutors may charge someone with more offenses and bigger alleged crimes than the circumstances support. What do you do, though, if you feel that a prosecutor has gone overboard in charging you? A criminal defense lawyer will usually consider the following four options.

Dismissal Motion

The first thing a criminal defense attorney wants to do is to try to get the number of charges down. Once the case appears before a judge, the defense will make the court aware of which charges have no basis in law or the facts of the alleged case. They will then request that the judge dismiss those charges. Even if the court doesn't dismiss the charges then and there, this brings the problem to the judge's attention. If additional facts emerge later that further support the idea that the prosecution overcharged the case, then the defense may revive the dismissal motions.

Excluding Evidence

Another tactic is to try to exclude evidence. Once more, pre-trial motions are your best friend. Your criminal defense lawyer will ask the judge to prevent the prosecution from using certain pieces of evidence. This could be because the evidence is inadmissible due to police failures, prosecutorial misconduct, or simple irrelevance. If the defense can pull some of the supporting evidence out from under the weaker charges, this may boost the odds that the judge will dismiss those counts.

Plea Bargaining

Sometimes the defense is willing to acknowledge a certain level of wrongdoing. However, a criminal defense attorney will inform the prosecution that the defendant is only willing to plead guilty to reasonable charges with sensible penalties. A prosecutor might be aware of the weaknesses of the case and offer a plea agreement. Likewise, prosecutors sometimes do plea bargains to free up their time or rack up a win.

You do have to be careful about rewarding bad prosecutorial behavior. Some prosecutors overcharge cases to encourage defendants to plead guilty to heavier charges. You and a criminal defense lawyer will have to decide if the terms are acceptable or not.


If you and your counsel feel that the prosecution has flat-out overplayed its hand, you can push for a trial. Essentially, you're calling the prosecution's bluff. If you believe there's no way 12 jurors will buy the prosecution's overblown case, then you might want to put the state on the spot. Likewise, trial procedures allow your criminal defense attorney to log problems with the case that might support an appeal.

Contact a criminal defense lawyer to learn more.