Question for you legal dopers Re: Double Jeopardy

[UltraVires]

Let’s say a man is charged with first degree murder and is convicted of a lesser included offense, say, voluntary manslaughter.

He feels that something the judge did was in error and appeals to (whichever state) the Supreme Court. The Court agrees that there was an error in the trial and remands the case back to trial court.

On retrial, could he be convicted of murder, or would jeopardy attach?

[dzero]

This is the closest I was able to find

Similarly, a new prosecution is permitted if a conviction is reversed on appeal. If the defendant is then reconvicted, however, a higher sentence may be imposed at the second trial. A jury verdict of not guilty, however, may not be appealed by the prosecutor and bars a second prosecution. The rules are more complex when a judge, rather than a jury, decides the case. Generally, a dismissal or acquittal by a judge bars reprosecution for the same offense. However, if the dismissal was requested by the defendant and was for a reason that would prevent prosecution, the prosecutor may appeal. If the dismissal is reversed, the defendant may be prosecuted again.

So a stiffer sentence apparently can be imposed but it seems to leave open the possibility of retrial on the greater offense - either that or the assumption is that it is only possible for the retrial to be on the offense for which the defendant was found guilty.

[Bricker]

@jtgain

Let’s say a man is charged with first degree murder and is convicted of a lesser included offense, say, voluntary manslaughter.

He feels that something the judge did was in error and appeals to (whichever state) the Supreme Court. The Court agrees that there was an error in the trial and remands the case back to trial court.

On retrial, could he be convicted of murder, or would jeopardy attach?

It depends on the reason underlying the appellate court’s action.

An appeal granted for insufficiency of the evidence does implicate jeopardy. The appeals court is saying, in effect, “There was, as a matter of law, not enough evidence adduced to support a conviction.” In that case, the dismissal is a bar against reprosecution.

But now let’s suppose it was something else: some evidence improperly admitted led to an unfair trial, so the conviction is vacated and jeopardy does not bar reprosecution on the original charge.

In general, the original jury’s verdict of acquittal on the greater charges will bar reprosecution on those greater offenses, so he can’t be retried for them.

As to sentencing: if he is again found guilty, the judge may impose a harsher sentence than was originally imposed, but to rebut any inference that the harsher sentence was motivated by a desire to punish the accused for appealing, the reasons for the harsher sentence must be affirmatively presented in the record.

[md2000]

IANAL so how does that work? Is someone charged with first degree murder but the judge gives the jury the option of manslaughter? Or is he charged with both? Or can the jury decide themselves (who gives them the range of lesser options?) Can you really receive two different charges for what is essentially the same act? Does the jury say “Not guilty of first degree and guilty of manslaughter”?

[UltraVires]

@Bricker

@jtgain

Let’s say a man is charged with first degree murder and is convicted of a lesser included offense, say, voluntary manslaughter.

He feels that something the judge did was in error and appeals to (whichever state) the Supreme Court. The Court agrees that there was an error in the trial and remands the case back to trial court.

On retrial, could he be convicted of murder, or would jeopardy attach?

It depends on the reason underlying the appellate court’s action.

An appeal granted for insufficiency of the evidence does implicate jeopardy. The appeals court is saying, in effect, “There was, as a matter of law, not enough evidence adduced to support a conviction.” In that case, the dismissal is a bar against reprosecution.

But now let’s suppose it was something else: some evidence improperly admitted led to an unfair trial, so the conviction is vacated and jeopardy does not bar reprosecution on the original charge.

In general, the original jury’s verdict of acquittal on the greater charges will bar reprosecution on those greater offenses, so he can’t be retried for them.

As to sentencing: if he is again found guilty, the judge may impose a harsher sentence than was originally imposed, but to rebut any inference that the harsher sentence was motivated by a desire to punish the accused for appealing, the reasons for the harsher sentence must be affirmatively presented in the record.

Specifically, I was referring to this case: State v. McGuire (W.V. Sup.Ct.App. 2000) 200 W. Va. 823; 490 S.E.2d 912

Basically the Defendant was charged with murder and convicted of voluntary manslaughter. A reasonable reading of the evidence would suggest that the defendant should have either been guilty of murder or involuntary manslaughter.

In this case, the court held that a jury could reasonably infer from the evidence that a voluntary manslaughter conviction was permissible.

But let’s say that they agreed with the Defense and said that a verdict of Voluntary Manslaughter didn’t have any basis of law. Could the state have retried for murder? Involuntary Manslaughter?

****btw, this isn’t a homework question, just a discussion we had after class which caused some confusion.

[Darth_Panda]

A sentence imposed at a trial-like proceeding may be sufficiently final to trigger double jeopardy.1570 In Arizona v. Rumsey, 1571 the Court reasoned that a life sentence impliedly acquits a defendant of the factual findings necessary to impose the death penalty because the sentencing proceeding is trial-like.1572 The Court concluded that imposition of the death penalty is barred by double jeopardy even if a life sentence is set aside on appeal1573 or results from an erroneous evidentiary ruling or erroneous interpretation of legal principles.1574

Double Jeopardy, Georgetown Law Journal, Johnson et al, 1998
http://findarticles.com/p/articles/mi_qa3805/is_199806/ai_n8790670/?tag=content;col1

Lowery argues that the double jeopardy clause was violated by his prosecution for robbery with firearms after his conviction for robbery by assault was set aside.18 We are not concerned with retrial on a charge dismissed by the State after prosecution had begun, compare Wilson v. Meyer, 665 F.2d 118 (7th Cir.1981), cert. denied, — U.S. ----, 102 S.Ct. 1621, 71 L.Ed.2d 855 (1982); Midgett v. McClelland, 547 F.2d 1194 (4th Cir.1977); the indictment’s allegation of use of a firearm was stricken prior to the empanelment and swearing of the first jury, Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978).19 Rather, the question is whether the double jeopardy clause prohibits trial on an offense not put in issue in the first proceeding, once the original conviction on a lesser variant has been set aside.20 We conclude that it does not.21

15
United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896) established the venerable, general rule that there is no double jeopardy bar to retrying a defendant who has succeeded in overturning his conviction. The slate has been “wiped clean,” North Carolina v. Pearce, 89 S.Ct. at 2078. Reprosecution can proceed on the same or a different statutory violation, regardless of whether that statutory violation is considered to be the same or a separate offense, Hardwick at 279-98; Wilson at 125. The major exception to this rule is for acquittals.22 If the fact-finder or an appellate court decides that the prosecution has not proved its case, either in entirety, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), or in part, Green, 98 S.Ct. at 225, the defendant is protected from reprosecution to the extent of that acquittal. Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 1860, 68 L.Ed.2d 270 (1981).

16
The Supreme Court has defined acquittal as " ‘the ruling of a judge, whatever its label, [which] actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged.’ Martin Linen [United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642], 430 U.S. at 571, 97 S.Ct. at 1355,". United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 2197, 57 L.Ed.2d 65 (1978). Green and Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970) recognized the partial acquittal implicit in a jury’s return of a guilty verdict on a lesser included offense following trial on the greater charge. But the necessary predicate to a finding of acquittal, whether express or implied, is a determination that the fact-finder had a full opportunity to return a verdict on the charge the defendant claims precluded, and rejected it. Green, 78 S.Ct. at 225; Price, 90 S.Ct. at 1761. No trier of fact has refused to convict Lowery of robbery with firearms. The charge of use of a firearm was withdrawn before the first jury was empaneled. That jury was not asked to consider whether Lowery used a gun in the commission of the Cities Service holdup. Its return of a guilty verdict on the greatest offense available to it said nothing about Lowery’s culpability for the still greater offense originally charged but not placed before it. Neither can the trial court’s striking of the allegation of use of a firearm be viewed as an acquittal of that charge. Lowery has produced no evidence whatsoever that the convicting court struck that section of the indictment because it believed the charge to be without factual basis.23 He has not shown that the striking was either necessarily, under Texas criminal procedures, compare Hawk at 447 n. 2,24 or in fact premised on a determination of the merits of the allegation stricken. Cf. Gully v. Kunzman, 592 F.2d 283, 289 (6th Cir.), cert. denied, 442 U.S. 924, 99 S.Ct 2850, 61 L.Ed.2d 292 (1979) (double jeopardy no bar to imposition of death sentence on second conviction for willful murder and armed robbery where life sentence only was sought and imposed following first conviction for same offenses). No factual preclusion on the charge of use of a firearm arose from the first determination of guilt on the lesser charge of robbery by assault. No issues of fact were necessarily determined in Lowery’s favor in the first trial. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 1193-94, 25 L.Ed.2d 469 (1970). The charge simply was not in issue in the first proceeding.25

17
Nor do we believe that the prosecution lost its power to prosecute the greater offense by requesting its dismissal prior to the trial of the first case. The double jeopardy clause does not require the state to join in a single criminal proceeding all charges arising from one criminal episode, compare Ashe 90 S.Ct. at 1193-95 with id. at 1197-1202 (Brennan, J. concurring). Had it stood, Lowery’s initial conviction for robbery by assault would have precluded subsequent proceedings on the greater charge of robbery with firearms, see Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 2226-27 & n. 7, 53 L.Ed.2d 187 (1977). But his decision to seek a new trial was “a deliberate election on his part to forgo his valued right to have his guilt or innocence determined by the first trier of fact,” Scott, 98 S.Ct. at 2195, and to yield the preclusive effects of an unchallenged conviction, id., 98 S.Ct. at 2192-94; Ball, 16 S.Ct. at 1195. We can perceive no constraints imposed by the double jeopardy clause on the scope of the subsequent prosecution after a defendant, once convicted of all that was charged, voluntarily26 and successfully challenges that first conviction on grounds other than insufficiency of the evidence, Burks, 98 S.Ct. at 2149-50. Accord, Klobuchir at 970; Hawk at 447-48.

Lowery v. Estelle, 696 F.2d 333
http://ftp.resource.org/courts.gov/c/F2/696/696.F2d.333.81-1198.html

If it comes up on the test, it will probably be worth twice as many points.

ETA: I think the 5th Circuit decision may bea little tainted, since the trial court was deemed lacking jurisdiction, which could be interpretted to making the first case a nullity, which would be a simpler reason for denying a double jeopardy claim (although I honestly haven’t put a ton of thought into it, just something that popped into my head).

[Bricker]

@md2000

IANAL so how does that work? Is someone charged with first degree murder but the judge gives the jury the option of manslaughter? Or is he charged with both? Or can the jury decide themselves (who gives them the range of lesser options?)

It can happen both ways.

The prosecution can choose to charge both murder and manslaughter. In that case, the prosecution is saying to the jury, “Here’s the evidence to believe him guilty or murder. But even if you don’t believe all of that evidence, there’s enough evidence for you to believe manslaughter.”

Or the defense could ask for a manslaughter instruction. They are entitled to one if “even a scintilla” of evidence is adduced at trial that a reasonable jury could believe and support manslaughter.

In both cases, it’s a tactical decision as much as anything else. If the Commonwealth believes it can convict on murder, it may not wish to give the jury a middle ground. Faced with a choice of a murder conviction or acquittal, they hope the jury will choose the conviction.

The defense faces the same conundrum in reverse: A weak murder case may better be left alone, to let the jury deliver an acquittal. But if the jury has a compromise opportunity, they might take it and you guy gets manslaughter instead of walking free.

And of course into this mix is leavened the actual facts of the case: it may be that the case simply doesn’t support a manslaughter conviction, that what was done was either deliberate or it didn’t happen, with recklessness simply not possible.

Can you really receive two different charges for what is essentially the same act? Does the jury say “Not guilty of first degree and guilty of manslaughter”?

Yes, they can. They can say your guy is guilty of both, in fact. If that happens, typically the two charges will merge into one for the purposes of sentencing, although there is a body of case law that addresses the handling of inconsistent jury verdicts, with an analysis that differentiates between whether the verdict is legally inconsistent or logically inconsistent.

Details on request.

[Bricker]

@jtgain

Specifically, I was referring to this case: State v. McGuire (W.V. Sup.Ct.App. 2000) 200 W. Va. 823; 490 S.E.2d 912

Basically the Defendant was charged with murder and convicted of voluntary manslaughter. A reasonable reading of the evidence would suggest that the defendant should have either been guilty of murder or involuntary manslaughter.

In this case, the court held that a jury could reasonably infer from the evidence that a voluntary manslaughter conviction was permissible.

But let’s say that they agreed with the Defense and said that a verdict of Voluntary Manslaughter didn’t have any basis of law. Could the state have retried for murder? Involuntary Manslaughter?

****btw, this isn’t a homework question, just a discussion we had after class which caused some confusion.

So let’s get our facts in order: an accused is charged with murder and with manslaughter. The jury convicts on manslaughter but acquits on murder. On appeal, the basis for the appeal and the appellate court’s decision are key to resolving this, and there are four basic paths in play:

POSSIBILITY A: If the appeal says: hey, there was no evidence on which a reasonable jury could have found manslaughter. Assuming that issue is preserved at trial for appeal (you can’t stay quiet, invite an error, and then complain about the error on appeal) then it’s game over. The jury has already acquitted on the murder charge, and under Ashe v. Swenson the prosecution is collaterally estopped from coming back and arguing the issue again. In effect, the appeals court has ruled that there was insufficient evidence to convict on that charge.

But note well how important the procedural posture is. If the defense fails to object to the voluntary manslaughter instruction at trial, they cannot claim on appeal that it was flawed. So the defense lawyer at trial has a tactical decision to make: will the jury be sympathetic and convict on a lesser charge if they have a chance? If they will, and he can avoid a murder conviction, maybe he shouldn’t object to the lesser-included instruction.

POSSIBILITY B: Suppose the appeal is on completely unrelated grounds: let’s say that there was admission of damaging medical testimony over the defense’s objections, and on that basis the court reverses the convictions. In that scenario, the state cannot retry on the previously acquitted charges, so just the manslaughter (and any lesser-included offenses) would be in play.

POSSIBILITY C: Now let’s assume that at trial the jury convicted on manslaughter, but was deadlocked on the murder charge. Now, on appeal, let’s review the same two scenarios. First, the appeals court finds there was no legal basis for the manslaughter charge. The retrial can be on the original murder charge, and the trial court is on notice that unless the record develops differently, it can’t give the manslaughter instruction.

POSSIBILITY D: The jury convicted on manslaughter, but was deadlocked on the murder charge. The appeals court reverses on some unrelated ground. All the original charges are still in play at retrial.

[Bricker]

One point raised by Darh Panda’s quotes that I did not address: jeopardy attaches to a jury trial when the jury is sworn, and to a bench trial when the judge begins hearing evidence. So an accused who is charged with three offenses, has one dismissed before the jury is sworn, convicted on the remaining two, has those convictions overturned on appeal, may be retried for all three without offending the Double Jeopardy clause.

[UltraVires]

@Bricker

@jtgain

Specifically, I was referring to this case: State v. McGuire (W.V. Sup.Ct.App. 2000) 200 W. Va. 823; 490 S.E.2d 912

Basically the Defendant was charged with murder and convicted of voluntary manslaughter. A reasonable reading of the evidence would suggest that the defendant should have either been guilty of murder or involuntary manslaughter.

In this case, the court held that a jury could reasonably infer from the evidence that a voluntary manslaughter conviction was permissible.

But let’s say that they agreed with the Defense and said that a verdict of Voluntary Manslaughter didn’t have any basis of law. Could the state have retried for murder? Involuntary Manslaughter?

****btw, this isn’t a homework question, just a discussion we had after class which caused some confusion.

So let’s get our facts in order: an accused is charged with murder and with manslaughter. The jury convicts on manslaughter but acquits on murder. On appeal, the basis for the appeal and the appellate court’s decision are key to resolving this, and there are four basic paths in play:

POSSIBILITY A: If the appeal says: hey, there was no evidence on which a reasonable jury could have found manslaughter. Assuming that issue is preserved at trial for appeal (you can’t stay quiet, invite an error, and then complain about the error on appeal) then it’s game over. The jury has already acquitted on the murder charge, and under Ashe v. Swenson the prosecution is collaterally estopped from coming back and arguing the issue again. In effect, the appeals court has ruled that there was insufficient evidence to convict on that charge.

But note well how important the procedural posture is. If the defense fails to object to the voluntary manslaughter instruction at trial, they cannot claim on appeal that it was flawed. So the defense lawyer at trial has a tactical decision to make: will the jury be sympathetic and convict on a lesser charge if they have a chance? If they will, and he can avoid a murder conviction, maybe he shouldn’t object to the lesser-included instruction.

POSSIBILITY B: Suppose the appeal is on completely unrelated grounds: let’s say that there was admission of damaging medical testimony over the defense’s objections, and on that basis the court reverses the convictions. In that scenario, the state cannot retry on the previously acquitted charges, so just the manslaughter (and any lesser-included offenses) would be in play.

POSSIBILITY C: Now let’s assume that at trial the jury convicted on manslaughter, but was deadlocked on the murder charge. Now, on appeal, let’s review the same two scenarios. First, the appeals court finds there was no legal basis for the manslaughter charge. The retrial can be on the original murder charge, and the trial court is on notice that unless the record develops differently, it can’t give the manslaughter instruction.

POSSIBILITY D: The jury convicted on manslaughter, but was deadlocked on the murder charge. The appeals court reverses on some unrelated ground. All the original charges are still in play at retrial.

Thanks for all of the answers. I’ll explain further. The facts in this case show that the Defendant was charged with murder, but the jury was also instructed on the lesser included offense of manslaughter.

In WV, there are two varieties of manslaughter, voluntary and involuntary. Voluntary requires intent to kill.

In this case, the judge provided jury instructions on all degrees of homicide in WV: 1st degree murder, 2nd degree murder, voluntary manslaughter, and involuntary manslaughter.

The Defendant proposed a Voluntary Manslaughter instruction that was absurd. The judge gave the standard instruction. The jury convicted on Voluntary Manslaughter. IN WV, the jury is simply asked to return a verdict and they returned one of Voluntary Manslaughter. Does that mean that they acquitted on the murder charges? The Supreme Court decision doesn’t say.

On appeal, the Defendant said that the standard definition (which her attorney objected to at trial and attempted to substitute his own) of Voluntary Manslaughter could not apply in her case as the fact pattern according to law would lead to only one of two conclusions:

1. If the jury did NOT believe that she thought the baby was stillborn, then she would be guilty of murder (one or two)

2. If the jury DID believe that she thought the baby was stillborn, she could only be convicted of INVOLUNTARY manslaughter.

As I said, the Court disagreed with her, but let’s pretend that they adopted her argument. Voluntary Manslaughter was a ridiculous verdict given the evidence. Could they go back and retry her for murder? Involuntary manslaughter? Have to send her home?

[Bricker]

@jtgain

In this case, the judge provided jury instructions on all degrees of homicide in WV: 1st degree murder, 2nd degree murder, voluntary manslaughter, and involuntary manslaughter.

The Defendant proposed a Voluntary Manslaughter instruction that was absurd. The judge gave the standard instruction. The jury convicted on Voluntary Manslaughter. IN WV, the jury is simply asked to return a verdict and they returned one of Voluntary Manslaughter. Does that mean that they acquitted on the murder charges? The Supreme Court decision doesn’t say.

They acquitted on the other charges

On appeal, the Defendant said that the standard definition (which her attorney objected to at trial and attempted to substitute his own) of Voluntary Manslaughter could not apply in her case as the fact pattern according to law would lead to only one of two conclusions:

1. If the jury did NOT believe that she thought the baby was stillborn, then she would be guilty of murder (one or two)

2. If the jury DID believe that she thought the baby was stillborn, she could only be convicted of INVOLUNTARY manslaughter.

As I said, the Court disagreed with her, but let’s pretend that they adopted her argument. Voluntary Manslaughter was a ridiculous verdict given the evidence. Could they go back and retry her for murder? Involuntary manslaughter? Have to send her home?

OK, so what we have here is a claim that the jury’s verdict is logically inconsistent. They cannot acquit her on murder charges and yet convict her on voluntary manslaughter, because voluntary manslaughter requires a finding of fact that she knew the baby was stillborn, goes the thinking.

But the jury does have the power, through an exercise of leniency, to do just that. We learn this from the 1932 case of Dunn v. United States, 284 US 390. IN Dunn, the accused was charged with three counts relating to liquor: keeping a place of sale with liquor, unlawful possession of liquor, and unlawful sale of liquor. The jury acquitted him on the second and third counts, and found him guilty on the first. On appeal, he raised basically the same point: the evidence either showed he was there, keeping and selling the liquor, or it did not. There was no way, on the evidence presented, the jury could have believed he was guilty of the first without also being guilty of the second and third. Therefore, he said, his conviction should be set aside, since the jury clearly believed he was innocent based on his acquittals.

But as Justice Holmes said in affirming in conviction:

The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.
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.
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That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.

So the voluntary manslaughter conviction will stand.

Now, if they reversed the case on other grounds having nothing to do with the inconsistent verdict, he’s in trouble, because voluntary manslaughter does show that the jury believed that she knew the baby was alive when born. So on retrial, a new jury could use that fact and convict her of murder. (This statement assume the “let’s pretend” that there was no evidence the jury could have used to actually sustain the voluntary manslaughter charge).

[Northern_Piper]

@md2000

IANAL so how does that work? Is someone charged with first degree murder but the judge gives the jury the option of manslaughter? Or is he charged with both? Or can the jury decide themselves (who gives them the range of lesser options?) Can you really receive two different charges for what is essentially the same act? Does the jury say “Not guilty of first degree and guilty of manslaughter”?

Since md2000 is posting from Canada, I thought I would mention that the rules for charging juries on lesser included offences is different here than as described by Bricker in the U.S.

In Canada, the Crown doesn’t have the option of only sending the murder charge to the jury. It’s the judge’s role to determine which lesser offences are potentially in play. If the judge thinks that the evidence discloses a possible lesser included offence, then the judge includes that in the charge, even if it is not formally included in the indictment. The Crown can’t insist that only the murder charge be put to they jury - that would give the Crown too much leverage in plea bargains, and would be contrary to the principle that the Crown’s role is to seek the appropriate result from the court, not the highest conviction possible.

The Supreme Court stated this principle in Head v. The Queen, [1986] 2 S.C.R. 684:

@McIntyre J.

The law is well settled that a trial judge, sitting with a jury, must instruct the jury on the principal offence or offences charged in the indictment, as well as any included offences and the verdicts that may be returned upon them. This principle emerges from R. v. George, [1960] S.C.R. 871. The George case did not involve a jury but the majority of the Court held that it was the duty of a trial judge, in disposing of a criminal case, to consider all included offences of which there is evidence, whether raised by counsel or not. It follows that when sitting with a jury it is the duty of the trial judge to instruct the jury with respect to included offences. There are several cases which follow and apply this principle: see R. v. Morehouse (1982), 65 C.C.C. (2d) 231 (N.B.C.A.), pp. 239‑40, where R. v. George, supra, was referred to, as well as R. v. Longson (1976), 31 C.C.C. (2d) 421 (B.C.C.A.)

(My underlining)

As for the process, the judge is to instruct the jury on the lesser included offences. When the jury comes back, if they acquit on the main charge (e.g. murder) but don’t comment on the lesser included offences (e.g. - manslaughter or assault causing bodily harm), it’s good practice for the judge then to ask them if they have any verdict on the lesser included offences. If there is no apparent ambiguity in the jury’s verdict of acquittal, it is taken to be an acquittal on all possible charges.

That was the point in issue in the Head case in the Supreme Court. Head arose in Saskatchewan where the jury acquitted on a charge of attempted murder and the Queen’s Bench judge immediately discharged the jury. However, it then came out that there was a possibility that the jury was going to convict on a lesser offence, and hadn’t had a chance to do so before the judge discharged them. The Crown alerted the judge, who heard argument, but then ruled that once he had discharged the jury, he was functus - he had no further jurisdiction over the indictment and could not recall the discharged jury. The accused’s acquittal stood.

The Supreme Court confirmed the QB judge’s analysis: the acquittal was considered an acquittal on all counts, charged or included.