‘De Minimis’ and the Structure of the Criminal Trial

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 important 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 defenses; 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 labor, and of responsibilities, between legislatures, prosecutors and courts in determining what kinds of conduct are to be defined and treated as criminal wrongs.