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Understand prosecutorial overcharging tactics

Prosecutorial overcharging is a tactic used by prosecutors to try to intimidate a defendant into accepting a guilty plea. In exchange, the prosecutor will drop the most serious charges.

Most of the time, people think of overcharging as a single act. However, a recent study demonstrates that there are actually three main tactics often in play:

1. The prosecutor files charges without enough proof to bring the case to trial.

This is a rather risky action on the part of the prosecutor because the charges can easily be dismissed. However, it may take weeks or months before there's a hearing that gets the defendant out of jail if he or she can't afford bail.

In the meantime, the defendant's life can be wrecked. Even if he or she does get out on bail right away, the damage to his or her reputation can be profound.

2. The prosecutor can threaten more severe punishment than the defendant is likely to see.

For example, while there are no guarantees in law, a first-time marijuana drug possession charge isn't likely to merit jail time -- but a prosecutor may make it sound like that's exactly what will happen unless you accept whatever plea he or she is offering.

That can terrify an unrepresented defendant into doing unnecessary time in jail or pleading guilty when it would have been possible to get an acquittal.

3. The prosecutor will tack on charges and the "generously" offer to drop them in order to make the defendant think he or she is really getting the deal of the century.

For example, gun enhancement charges are often added to a defendant's charges just to give prosecutors something to drop. Since it has a mandatory 5-year sentence in prison, defendants may be so relieved to hear that the prosecutor is willing to drop the gun enhancement charge for a guilty plea they never realize they're being scammed.

If you're facing a criminal charge in Maryland, don't face it without experienced legal assistance by your side. Our firm has attorneys who have experience as prosecutors -- which means that we know how they think.

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