'De Minimis' and the Structure of the Criminal Trial

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 criminal-ization. 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.