Can a prosecutor amend a criminal complaint up from a misdemeanor to a felony after the defendant pleads not guilty?

Plain-English summary

Opinion E-76-8 addressed whether amending a criminal complaint upward to allege a felony, where the defendant had previously been charged with a misdemeanor, raises an ethical problem. The district attorney had charged the misdemeanor hoping to obtain a guilty plea and spare the alleged nine-year-old victim the trauma of testifying, but when the defendant pleaded not guilty, trial seemed inevitable.

The committee concluded that, under these circumstances, it would not be ethically improper to amend the charge from a misdemeanor to a felony. It found no violation of DR 7-103(A) (which barred instituting charges not supported by probable cause), holding that provision not pertinent here. The pertinent guidance was Section 3.9(b) of the ABA Standards for Criminal Justice (Prosecution Function), under which a prosecutor need not present all the charges the evidence might support and may properly consider the victim's reluctance to testify, along with Wis. Stat. § 971.29(1), supporting the view that a prosecutor need not bring the maximum charge at the first instance.

The committee added that it is obviously wrong to "overcharge" a crime to coerce a guilty plea to a reduced charge where the greater charge cannot be proved, citing Thompson v. State, 61 Wis. 2d 325, 330 (1973), but said that was not this case. Because the lesser charge was brought to attempt to induce a guilty plea and spare the prosecuting witness, and the defendant chose not to plead guilty, filing the amended complaint was ethically proper.

Currency note

This opinion was issued in 1976, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code's DR 7-103(A) together with the ABA Standards for Criminal Justice and Wis. Stat. § 971.29(1). The current counterpart for a prosecutor's charging responsibilities is SCR 20:3.8 / Model Rule 3.8 (special responsibilities of a prosecutor). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a prosecutor increase a charge after a defendant refuses to plead guilty?

A: On these facts, yes. The committee concluded that amending from a misdemeanor to a felony after the not-guilty plea was not ethically improper, since the prosecutor need not bring the maximum charge first.

Q: When would raising a charge be improper?

A: The committee said it is wrong to overcharge to coerce a guilty plea to a reduced charge where the greater charge cannot be proved, citing Thompson v. State, but found that situation was not present.

Q: Could the prosecutor consider the victim's reluctance to testify?

A: Yes. The committee relied on ABA Standards § 3.9(b), under which a prosecutor may properly consider a victim's reluctance to testify in deciding what to charge.

Background and rules framework

The opinion applied the former Code's DR 7-103(A), the ABA Standards for Criminal Justice (Prosecution Function) § 3.9(b), and Wis. Stat. § 971.29(1) to a prosecutor's charging decision. The current counterpart is SCR 20:3.8 / Model Rule 3.8 (special responsibilities of a prosecutor).

Citations and references

Rules of Professional Conduct:

• Model Rule 3.8 / SCR 20:3.8 (special responsibilities of a prosecutor); former Code DR 7-103(A)

Statutes:

• Wis. Stat. § 971.29(1) (amendment of charges)

Cases:

• Thompson v. State, 61 Wis. 2d 325 (1973), coercive overcharging

Other authority:

• ABA Standards for Criminal Justice (Prosecution Function) § 3.9(b)

See also

• WI Ethics Op. E-86-7: Prosecutor Duties on Witnesses Helpful to the Defense
• WI Ethics Op. E-84-15: Prosecutor Communicating With a Represented Complainant
• WI Ethics Op. E-80-3: Special Prosecutor as Witness

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-76-8.pdf