The court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the defendant’s conduct: (a) Was within a customary license or tolerance, neither expressly negated by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense; (b) Did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or (c) Presents such other extenuations that it cannot reasonably be regarded as envisaged by I Liheslatura in forbidding the offense. The court shall not dismiss a prosecution under this Subsection without filing a written statement of its reasons. SOURCE: M.P.C. § 2.12; *N.J. § 2C:2-11. 2024 NOTE: Reference to the “Legislature” replaced with I Liheslatura pursuant to 2 GCA § 1101. COMMENT: This is a new Section to Guam. In criminal law enforcement a number of agencies exercise discretion as to the appropriateness of prosecution in a particular case. The police decide whether to arrest and whether to transmit
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the reports to the Attorney General; the Attorney General decides whether to file charges and what charges; the grand jury decides upon probable cause in felonies; and the court must decide upon similar issues at preliminary hearings and at requests for search warrant, etc. It would be unrealistic to believe that judges never enter a finding of not guilty even though guilt is proven where a conviction is considered to be inappropriate. All this has been summarized as a “kind of unarticulated authority to mitigate the general provisions of the criminal law to prevent absurd applications.” This Section is intended to codify those areas in which a judge may act.