Imagine a scenario where you know beyond a reasonable doubt that somebody did something wrong, but you couldn't prove exactly what it was. It could have been A or B. But you cannot prove it was A and you cannot prove it was B.


Imagine a marijuana salesman is being charged with fraud. His accuser states that he has been sold fake marijuana which constitutes fraud. The selling of marijuana is also considered a crime. Multiple witnesses attest to the fact that the marijuana seller was purporting to sell marijuana. The evidence has been smoked. There is no way to determine whether there was a fraud or whether there was an illegal sale of marijuana. But the number of witness reports puts it beyond a reasonable doubt that one of the two occurred.

  • Are you asking us to do your homework for you?
    – phoog
    Nov 18, 2015 at 18:41
  • 1
    I have never set foot in a law school
    – Mr. A
    Nov 18, 2015 at 18:43
  • 3
    It makes it more clear that you are looking for a yes/no answer with supporting evidence, rather than philosophical musings, speculation or debate. Nov 18, 2015 at 20:04
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    Would this be an acceptable scenario for your question: A man robs a convenience store, while on the other side of town his twin commits murder at the same time. Both events have witnesses, but nobody can tell which twin committed which crime. Nov 20, 2015 at 16:04
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    @Mr.A You should try asking that specific question, my (weak) understanding is that question would be a finding of law rather than a finding of fact and the reasonable doubt standard wouldn't apply. Nov 23, 2015 at 21:14

4 Answers 4


In a common law jurisdiction in the circumstances you describe you cannot be charged with a crime; much less proved guilty of it.

In Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3 February 2010) the High Court said:

The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge

In this, they were relying on the decision in Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 (16 December 1937), however, as the style of decision writing in the early part of the twentieth century involved using page long unnumbered paragraphs, there is no appropriately pithy quote available from that case.

Further, your example is flawed - public policy dictates that a person defrauded in a criminal enterprise has no recourse to the law - there is no fraud here as the underlying "contract" was void for criminality. A person engaged in a joint criminal enterprise also has no duty of care to his co-criminals.

  • That doesn't follow. Maybe there is good reason to suspect them of both crimes, but there's a reasonable doubt as to each, but no reasonable doubt that one of the two was committed. In that case, you could certainly charge them with both.
    – cpast
    Nov 19, 2015 at 5:48
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    @cpast read the 1937 case: the appellant was alleged to have sold alcohol out of hours to two different groups of men. He won on the basis that 2 acts could not make 1 offense; specifically that, without knowing the specifics of his alleged wrongdoing he was unable to prepare a defense.
    – Dale M
    Nov 19, 2015 at 21:50
  • @DaleM: I think that would be a different situation. If I'm accused of having committed a crime at location X, and also accused of having committed a crime at a different location Y at the exact same time, then for each crime, the witnesses that saw me at the other place would create more than reasonable doubt. There would be reasonable doubt that I committed any crime.
    – gnasher729
    Oct 23, 2016 at 23:06
  • @gnasher729 missing the point - the law is the police can't just say "you committed X" they have to go on to say "by doing A, B & C". A, B & C can be vague and may be disputed (if so a jury will decide if they are true) but they must be detailed enough that a defence can be prepared.
    – Dale M
    Oct 23, 2016 at 23:18
  • @DaleM: The original question was about a situation where it is beyond doubt that I committed some crime, but not at all clear which one. So the fact that a court can't just say "you committed some crime" protects me. But in the case above, even without that protection I would have a very good defence.
    – gnasher729
    Oct 24, 2016 at 7:48

In most judicial systems, the judgment must name the exact crime the accused is convicted for. When the prosecution can not prove that the accused committed a specific crime, the suspect must be acquitted.


I am answering this question under the laws of the state of New Jersey. The elements of fraud in New Jersey are: (1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages

Each element must be proven beyond a reasonable doubt. Since they do not have a sample of the substance. They cannot prove these elements. There is no way to prove 1 or 2.

Now let's look at distribution: The elements are: (simplified) 1. The substance is (insert appropriate CDS or controlled substance analog). 2. The defendant possessed, or had under (his/her) control, substance. 3. The defendant, when (he/she) possessed or had under (his/her) control substance had the intent to distribute S in evidence. 4. That the defendant acted knowingly or purposefully in possessing or having under (his/her) control with intent to distribute Substance in evidence.

There is no way to prove element 1, that the substance sold was in fact an illegal drug.

There is reasonable doubt to both counts the defendant could be charged with. The jury must acquit, judge should dismiss or at least sever the case to not prejudice the defendant's due process rights.

Sources: http://www.davidrichlaw.com/what-are-the-elements-of-fraud-in-new-jersey/ http://www.njlaws.com/possession_with_intent_to_distribute.htm


It is entirely permissible to charge or defend with conflicting allegations. The classic example:

  1. I did not kill my wife at my home on Nov. 17th.
  2. I was not home at Nov. 17th when my wife was killed.
  3. I do not have a wife.

A prosecutor could charge with both allegation of fraud and CDS and let the jury decide.

In many jurisdictions the purported sale of CDS is a crime as well, eliminating this problem.

  • How is the example helpful? Suppose someone kills his wife, and is charged and tried with killing his wife. Suppose further that proof emerges that he was not in fact married to his wife; she wasn't his wife. That has no bearing on the crime of murder. So what if the murder victim wasn't his wife? He still killed her.
    – phoog
    Nov 24, 2015 at 21:30
  • I don't understand the purpose of that example. There are no allegations at all, only a number of statements which may or may not be factual. Allegations sound like this "you murdered your wife".
    – jimsug
    Nov 25, 2015 at 2:34
  • It is a classic example (ie, commonly used) of conflicting arguments permitted in a court. Lawyer deal with conflicts as stated in the OP's question ALL THE TIME. Nov 25, 2015 at 14:35

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