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‘De Minimis’ and the Structure of the Criminal Trial

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Abstract

The Model Penal Code’s ‘De Minimis’ provisions (§ 2.12) cover different kinds of case in which, for reasons of equity, a prosecution should be dismissed. An exploration of these different cases illuminates some general issues about the structure of the criminal process, and about the processes of criminalization. These include the significance of the difference between dismissing a case and acquitting the defendant, and of the distinction between offences and defences; whether criminal offences should always be so defined that they specify at least a pro tanto wrong, or may sometimes legitimately specify only a prima facie wrong – and whether this is consistent with the presumption of innocence; what kinds of conduct we can properly be expected to answer for in a criminal court; and the proper division of responsibilities between legislatures, prosecutors and courts in determining what kinds of conduct are to be defined and treated as criminal wrongs.

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Notes

  1. See American Law Institute, Model Penal Code and Commentaries (revised ed., 1985; hereafter Commentary), vol. 1, 404; Paul H. Robinson, ‘Legality and Discretion in the Distribution of Criminal Sanctions’, Harv. J. on Legislation 25 (1988): pp. 393–460, at 431–4; Jeff Nemerofsky, ‘What is a ‘Trifle’ Anyway?’, Gonzaga L. Rev. 37 (2002): pp. 315–41; Stuart P. Green, Thirteen Ways to Steal a Bicycle (Oxford: Oxford University Press, 2012), at 157–69; Douglas N. Husak, ‘The De Minimis ‘Defense’ to Criminal Liability’, in Husak, The Philosophy of Criminal Law (Oxford: Oxford University Press, 2010), pp. 362–89; M. Beth Valentine, ‘Defense Categories and the (Category-Defying) De Minimis Defense’, Crim. Law & Phil. 11 (2017): pp. 545–59. (State codes tend to replace the mandatory ‘shall’ of § 2.12 by a permissive ‘may’.)

  2. Commentary, 399, 402. See Josh Bowers, ‘Legal Guilt, Normative Innocence, and the Equitable Decision not to Prosecute’, Colum. L. Rev. 110 (2010): pp. 1655–1726.

  3. Green, n. 1 above, 159; see also Husak, n. 1 above, 363.

  4. See Model Penal Code § 6.02(3). Compare Powers of Criminal Courts (Sentencing) Act 2000, s. 12.

  5. See Commentary, 400.

  6. Graham Virgo, The Principles of Equity and Trusts (3rd ed.; Oxford, Oxford University Press, 2018), at 24.

  7. Commentary, 403, 404, quoting Charles D. Breitel, ‘Controls in Criminal Law Enforcement’, U. Chi. L. Rev. 27 (1960): pp. 427–35, at 427.

  8. See Valena E. Beety, ‘Judicial Dismissal in the Interest of Justice’, Mo. L. Rev. 80 (2015): pp. 629-64; Anna Roberts, ‘Dismissals as Justice’, Ala. L. Rev. 69 (2017): pp. 327–80; John F. Wirenius, ‘A Model of Discretion: New York’s ‘Interests of Justice’ Dismissal Statute’, Alb. L. Rev. 58 (1994): pp. 175–222.

  9. English law once also allowed this (Summary Jurisdiction Act 1879, s. 16). English Courts no longer have that power, but can order an ‘absolute discharge’ following a conviction, which ‘shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made’ (Powers of Criminal Courts (Sentencing) Act 2000, s. 14): this provision might be seen as functionally equivalent to § 2.12 (see John Sprack, A Practical Approach to Criminal Procedure (14th ed.; Oxford: Oxford University Press, 2012), ch. 25.41), but it seems odd for the law to declare that a conviction should be deemed not to be a conviction.

  10. My discussion will be limited to adversarial trials, but I hope that a similar underlying logical structure will be discernible in other, more inquisitorial, modes of trial.

  11. See Sprack, n. 9 above, ch. 20.14-20; James Chalmers and Fiona Leverick, Criminal Defences and Pleas in Bar of Trial (Edinburgh: W. Green, 2006), chs 14-20; Andrew L-T Choo, Abuse of Process and Judicial Stays of Criminal Proceedings (2nd ed.; Oxford: Oxford University Press, 2008).

  12. See Stair Memorial Encyclopaedia, Criminal Procedure (2nd Reissue; London, Butterworths, 1991), § 204.

  13. See Sprack, n. 9 above, ch. 20.48-55.

  14. See R. Antony Duff, Lindsay Farmer, Sandra Marshall and Victor Tadros, The Trial on Trial (3): Towards a Normative Theory of the Criminal Trial (Oxford: Hart Publishing, 2007); R. Antony Duff, Answering for Crime (Oxford: Hart Publishing, 2007). I cannot defend this account of the trial here, but should emphasise that it is a normative, not a descriptive, account: it is offered as a rational, idealising reconstruction of this legal institution; it gains plausibility insofar as it helps us to understand the rationale for what might otherwise be puzzling features of that institution – such as the De Minimis doctrine.

  15. On this account, the distinction between offences and defences is substantively significant: see s. VI below.

  16. In line with the general orientation of § 2.12: see at n. 2 above.

  17. 679 A. 2d 81 (Me. 1996): see Nancy A. Wanderer and Catherine R. Connors, ‘Culture and Crime: Kargar and the Existing Framework for a Cultural Defense’, Buff. L. Rev. 47 (1999): pp. 829–73; State v. Ramirez 2005 WL 3678032 (Me. 2005).

  18. 17-A M. R. S. A. § 253(1)(B), § 251(1)(C)(1).

  19. 679 A.2d 81, 84.

  20. 679 A.2d 81, 83.

  21. 17-A M. R. S. A. § 12(1)(C).

  22. Hence the quoted reference in the Legislature to ‘innocent’ contacts, and the fact that the statute defined other kinds of ‘sexual act’, involving contact that clearly could be ‘innocent’, in terms of particular sexual or malicious motivations (17-A M. R. S. A. § 251(1)(C)(3)).

  23. See Stanislaw Pomorski, ‘On Multiculturalism, Concepts of Crime, and the ‘De Minimis’ Defense’, B. Y. U. L. Rev. (1997): pp. 51–99, at 80–82.

  24. See 679 A.2d 81, 82; thanks to Clare Huntington for raising this point about potential future harm.

  25. Compare the Kargar court’s comments on the factors it thought relevant: 679 A.2d 81, 84.

  26. Thus the Kargar court’s reference (679 A.2d 81, 84) to whether the defendant ‘knew or ought to have known of the illegality’ of his conduct suggests that some ignorance of law can excuse; see also Pomorski, n. 23 above, 78, on battered spouses whose violent reaction exceeds the legally recognised boundaries of self-defence.

  27. Pomorski, n. 23 above, 79; State v. Sorge 591 A.2d 1382 (N.J. 1991); N. J. S. A. 2C:36-6.

  28. 591 A.2d 1382, 1385.

  29. Which the New Jersey code does provide (N. J. S. A. 2C:3-2), but perhaps not for these defendants, given the conditions laid down in N. J. S. A. 2C:36-6 for the authorised distribution of hypodermic needles.

  30. Compare Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112: a doctor prescribing contraceptives to a girl of fifteen might commit the offence of aiding and abetting the unlawful sexual intercourse that she knows her actions will facilitate, but might appeal to a version of § 2.12(3), were it available (such appeal would not now be necessary, given s. 73 of the Sexual Offences Act 2003, which exempts from liability someone who acts for the purpose of protecting the young person’s interests).

  31. Thanks to two reviewers for pressing me on this point.

  32. Compare the way in which prosecutors can sometimes impose punishments, such as ‘prosecutor fines’ (see Peter Duff, ‘The Prosecutor Fine’, Oxford J. of Legal Studies 14 (1994): pp. 565–87), for minor offences without going to court. This raises questions, to which I return briefly in s. VI, about the extent of the discretion that should be granted to prosecutors – and about how their exercise of that discretion can be rendered properly accountable. Similar points apply to the police: just as they can issue formal cautions, without sending the case to the prosecutor, so they can accept a perpetrator’s explanation of his commission of a crime as conclusively exculpatory.

  33. See further R. Antony Duff, The Realm of Criminal Law (Oxford: Oxford University Press, 2018), ch. 5.

  34. On ‘public interest’ and prosecution, see the English Code for Crown Prosecutors (https://www.cps.gov.uk/publications/code_for_crown_prosecutors/) para. 4.12.

  35. Commentary, 402; see Pomorski, n. 23 above, at 54-5.

  36. Husak, n. 1 above, at 374; see also Valentine, n. 1 above, at 552.

  37. N. 23 above, at 53–69.

  38. Id., at 57-8, 63.

  39. That is why beating one’s child, and female genital mutilation, are properly treated as criminal even if they are customarily accepted as permissible within particular cultural groups (compare Pomorski, n. 23 above, at 59, 63).

  40. So too, the kind of physical contact that is unavoidable in ordinary life is not prosecutable as battery even if it satisfies the formal offence-definition: it must be accepted as part of ‘the ordinary conduct of daily life’ (David Ormerod and Karl Laird, Smith, Hogan, and Ormerod’s Criminal Law (16th ed.; Oxford, Oxford University Press, 2021) at 700.

  41. See, e.g., Pomorski, n. 23 above, at 70-99; Nemerofsky, n. 1 above; Husak, n. 1 above; Green, n. 1 above, at 157–69; Valentine, n. 1 above; on Canadian law, Colton Fehr, ‘Reconceptualizing De Minimis Non Curat Lex’, Crim. L. Q. 64 (2017): pp. 200–224.

  42. See Joel Feinberg, Harm to Others (New York: Oxford University Press, 1984), chs 1–3.

  43. As with a theft of 35 cents from a child: see Commonwealth v. Moses 504 A.2d 330 (Pa. Super. 1986).

  44. See at n. 2 above; also The Reward (1818) 2 Dodson 265, at 269–70: ‘The law permits the qualification implied in the ancient maxim De minimis non curat lex… If the deviation were a mere trifle, … it might properly be overlooked’ (Sir W Scott).

  45. See n. 9 above.

  46. See Andrew J. Ashworth and Mike Redmayne, The Criminal Process (4th ed.; Oxford, Oxford University Press, 2010), at 167–8.

  47. Husak, n. 1 above, 382–3; see also more generally; Valentine, n. 1 above.

  48. See e.g., George Fletcher, Rethinking Criminal Law (Boston: Little, Brown, 1978), 552–79, 683–758; John Gardner, ‘Fletcher on Offences and Defences’, Tulsa L. R. 39 (2004): pp. 817–27; Duff, n. 14 above, ch. 9; s. VI below.

  49. I assume that justifications include permissions: see Douglas N. Husak, ‘Justifications and the Criminal Liability of Accessories’, J. Crim. L. & Criminology 80 (1989): pp. 491–520, 491–504.

  50. Hessel v. O’Hearn 977 F.2d 299, 303 (7th Cir. 1992): see Husak, n. 1 above, 383.

  51. Compare Fehr, n. 41 above, s. 3(c).

  52. See (critically) Michael D. Reisig, ‘Community and Problem-Oriented Policing’, in Michael Tonry (ed.), The Oxford Handbook of Crime and Criminal Justice(Oxford: Oxford University Press, 2011): pp. 538–76.

  53. See Green, n. 1 above, at 164–5.

  54. 679 A.2d 81 (Maine 1996); see at nn. 17–24 above.

  55. Hansard vol. 409, 15 July 2003, col. 248.

  56. See Crown Prosecution Service, Youth Offenders (2020; https://www.cps.gov.uk/legal-guidance/youth-offenders), ‘Child sex offences committed by children or young persons’.

  57. See Steven Bero and Alex Sarch, ‘The Problem of Over-inclusive Offences’, Crim. L. & Phil. 14 (2020): pp. 395–416.

  58. To make sure that it is Dworkinian ‘weak’ rather than ‘strong’ discretion: Ronald M. Dworkin, ‘The Model of Rules I’, in Dworkin, Taking Rights Seriously (2nd ed.; London: Duckworth, 1978): pp. 14–45. Prosecutors and courts must then be able to work out what ‘harm or evil’ the law is aimed at: but the need to engage in worryingly creative interpretations of the law’s aims would be reduced if legislatures did more to make statutorily explicit the mischiefs at which their legislation is aimed.

  59. Paul H. Robinson, ‘Criminal Law Defenses: A Systematic Analysis’, Colum. L. Rev. 82 (1982): pp. 199–291, at 208–9.

  60. See id., at 212–3, 250–62.

  61. See n. 48 above. I should emphasise that the distinction on which I rely here and in s. VI below is to be understood normatively: legislatures should so define offences that they specify a pro tanto wrong for which a defence is then needed.

  62. This is in one way inaccurate, since insanity, which rebuts responsibility for the offence, is a defence; that is why some theorists class insanity as an ‘exemption’ (see Duff, n. 14 above, at 284–91).

  63. See at n. 12 above.

  64. On presumptive wrongs, see Duff, n. 14 above, at 220–24, 242–50.

  65. Philosophers who talk about ‘prima facie’ wrongs have not always been clear about whether prima facie wrongs are genuine, pro tanto, wrongs, or only apparent wrongs: but see Jonathan Dancy, Moral Reasons (London: Wiley, 1993), ch. 6; contrast Matthew H. Kramer, Torture and Moral Integrity (Oxford: Oxford University Press, 2014), 2–4.

  66. See at nn. 55–6 above.

  67. 17-A M. R. S. A. § 253(1)(B), § 251(1)(C)(1); see at nn. 17–24 above.

  68. See at nn. 19, 22 above (on the Maine statute), n. 55 (on the Sexual Offences Act).

  69. The 1916 Act has been replaced: contrast the bribery offences defined in ss. 1–5 of the Bribery Act 2010, in which the corruption must be proved as part of the offence.

  70. Sexual Offences Act 2003, s. 75.

  71. To require the defendant to ‘prove’ a defence looks at odds with the presumption of innocence: but in English law this requirement is typically satisfied if the defendant offers evidence sufficient to create a reasonable doubt as to his guilt (see Sexual Offences Act 2003, s. 75(2)(c); Terrorism Act 2000, s. 118).

  72. But see Fulton v Normand 1995 SCCR 629, and n. 73 below.

  73. To distinguish these two kinds of offence we (and prosecutors and courts) must appeal to the intention of the legislature, but I cannot discuss the problems that that raises here. In the examples I have used, the intention is clear enough: it is either clear from the context (as with the offence under the Sexual Offences Act 2003 and in Mr Kargar’s case) that the statute is intended to pick out a pro tanto wrong, or clear from the statute’s wording that it is intended to specify only a prima facie wrong. In general, it seems plausible that statutes should be interpreted as being intended to specify a pro tanto wrong, unless the contrary intention is clear, for the reasons suggested in what follows; and see Jonathan Rogers, ‘The Role of the Public Prosecutor in Applying and Developing the Substantive Criminal Law’, in R. Antony Duff et al. (eds.) The Constitution of the Criminal Law (Oxford: Oxford University Press, 2013): pp 53–76.

  74. See e.g., Hamish Stewart, ‘The Right to be Presumed Innocent’, Crim. L. & Phil. 8 (2014): pp. 407–20.

  75. A reviewer suggested that in our extra-legal moral lives we may be entitled to presume guilt – culpable moral wrongdoing – on the basis merely of reasonable suspicion plus the suspected person’s failure or refusal to offer an exculpatory account of their suspicious conduct. That might sometimes be true: but it shows only that whatever presumption of innocence should guide our personal and social relationships is different from that which rightly governs the criminal trial – for obvious reasons, to do both with the distinctively harsh burdens involved in criminal trials and punishments, and with the expectations that structure our relationship as citizens with the law, as distinct from other kinds of personal and social relationship.

  76. Evidence that would suffice, not to prove his innocence in the ordinary sense of ‘prove’ (for to require such proof would be clearly inconsistent with the presumption of innocence), but to create a reasonable doubt about his guilt: see n. 71 above.

  77. See at n. 70 above.

  78. See text following n. 71 above.

  79. See at n. 69 above.

  80. Compare offences of strict criminal responsibility, in which proof of the actus reus suffices for conviction unless the defendant can adduce evidence of lack of mens rea (see Duff, n. 14 above, ch. 10.3): the problem with offences in relation to which De Minimis counts as a defence is that they do not even require proof of a genuine actus reus – proof that the mischief at which the law is aimed was actually caused (or at least threatened).

  81. See at nn. 55-6 above.

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    R. A. Duff

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Professor Emeritus of Philosophy, University of Stirling. Earlier versions of this paper were presented at the UK Analytic Legal and Political Philosophy Conference, at Fordham Law School, and at Berkeley Law School: I am very grateful for helpful comments received at those meetings (especially to Chris Kutz and Andrea Roth, my commentators at Berkeley); to Doug Husak, Matt Kramer, and Sandra Marshall; and especially to two anonymous reviewers for their detailed and constructive suggestions.

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Duff, R.A. ‘De Minimis’ and the Structure of the Criminal Trial. Law and Philos 42, 57–86 (2023). https://doi.org/10.1007/s10982-022-09451-z

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