Mostly I agree with the above, especially with the Assault and Hindering a Police Investigation charges (or some version of this).
In the jurisdiction I'm in, however, a Theft charge would not fly, because part of that offence is
the intention to keep the goods for the person's own use. And as your guy just knocked the gun out of the cop's hand (or snatched it and threw it away), I don't think many judges would accept that the requirements for theft were satisfied.
The theft charge probably won't fly at trial. But the question at this point is whether there is probable cause to believe a theft occurred, not proof beyond a reasonable doubt. Depending upon the jurisdiction, I think a theft charge would hold up at this stage.
Another point about "throwing the book at him". Bear in mind that for
each action the police prosecutors can only choose one charge - and they will choose the one that they are most likely to succeed on, not the one with the most jail time.
This somewhat depends upon the jurisdiction. The Feds love to pile on the charges. Sell to two undercover cops at the same time and they'll charge you with two counts of distributing. But frequently the police charge each possible theory, and then drop for the plea or when the trial begins.
Because let's say you could charge A or B, but only choose A. Defense attorney finds a fatal flaw in the charge, and now the prosecutor's case is thrown out. Now the defendant is free until the police can find and arrest him on the other charge. Especially if the defendant is in jail, think the police want to go through that aggravation?
This is because Judges don't like it when the police prosecutor says, "Well, we're fairly certain what he did would make him guilty of A, and if that won't work we've got B as a back-up, and if the judge doesn't like that we'll try for C".
Again depends upon the jurisdiction, but usually a prosecutor can use two alternative theory. The jury can only convict on one, however. I've had a couple of cases where that has happened. It's not a big deal procedurally.
A judge (in my jurisdiction) would have a pretty sharp tongue for that police prosecutor! They'd have to choose one charge and go for proving that. (That's why you don't see trials in which the defendant is charged with "Murder, or manslaughter, or assault with a deadly weapon".)
Not quite. Manslaughter and assault are lesser included offenses of murder. The elements of common law murder are:
- the killing
- of a human being
- by another human being
- with malice aforethought.
Let's say the prosecutor proves 1, 2, and 3 of the elements, but the jury does not believe that the prosecutor proved malice aforethought. The jury brings back a verdict of manslaughter. The defendant might waive some of the elements at trial. For example, we could stipulate that the victim was in fact a human. Otherwise, the prosecutor has to prove that the victim was human.
PS I'm fairly certain you will be able to access your legislation online, so I encourage you to look them up.
